Thursday, June 30, 2022

EU Competition Law and Democracy in the Shadow of Rule of Law Backsliding

EU Competition Law and Democracy in the Shadow of Rule of Law Backsliding



Kati Cseres

University of Amsterdam - Amsterdam Centre for European Law and Governance and Amsterdam Center for Law & Economics


Competition is a vital component of, not only functioning market economies but also of democratic legal and political systems. In Europe, one of the key historical lessons so prominently advanced by the Ordoliberals was the concern about repercussions of concentrated market power and political power on the democratic functioning of society. The role of competition as a fundamental institution of a democratic system is a salient concept that already influenced the drafters of the Rome Treaty and its central role in creating democratic political systems was remarkably re-stated in the 1993 Copenhagen (accession) criteria of the EU. This chapter shows how competition law in Europe has developed as a quasi-constitutional foundation of liberal democracy and has over the past seven decades advanced into a powerful institution to defend markets across Europe, to protect democratic societies and to safeguard European undertakings’ freedom of economic activity and citizens’ choice. Crucially, this fundamental role of competition law has been transplanted into the EU’s Member States as a key and indispensable component of EU membership and economic governance. However, as national policies globally shifted towards more economic patriotism challenging neo-liberal ideas of free trade and market competition, the question arises how the prevailing models of EU §competition law shape responses to the challenges of rising political populism, growing political and corporate concentration. In this chapter I analyse how competition law can address such democratic challenges as well as how constitutional transformation and democratic backsliding in some EU Member States have affected the authority of EU and national competition laws and their effective enforcement. By using selected cases from Hungary, the chapter shows how the effective enforcement of (EU) competition law can be undermined by the backsliding of democratic systems and by increasing instrumentalization of institutions involved in competition law.

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