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Populism and Antitrust. Institutional and Enforcement Facets

The project aims to identify the processes triggered by the rise of populist, illiberal governments that may adversely affect competition law enforcement. It examines the ways in which the enforcement of competition law is subject to populist influences.

Letzte Änderung: 21.03.19

Competition law is a powerful area of the law. It supplies the framework for a proper, consumer-friendly functioning of the economy. By combating cartels and other anticompetitive agreements as well as abuse of market power by dominant firms, and by controlling mergers capable of producing anticompetitive effects, competition law aims at protecting consumer welfare, associated with low prices, high quality, choice, and innovation. In addition, competition law promotes regional economic integration by guaranteeing a level playing field for both domestic and foreign firms. Such features of competition law may be maintained if competition authorities properly fulfil their role, i.e. if they enforce competition law effectively and impartially; and if courts, acting in full independence, provide efficient review of competition authorities’ decisions.
The current rise of populism across the world brings about challenges to such a model of competition law. These challenges are of a two-fold nature. First, populist governments - by referring directly to their popular electorate - are often at odds with the institutions of liberal democracy, including courts and professional public administration. They may introduce legal reforms or undertake direct actions aimed at limiting the independence of both the judiciary and the public administration. This populist, anti-institutional stance may affect competition authorities and the courts adjudicating in competition law cases. Second, populist governments tend to promote economic policies of national self-interest as a response to globalisation, which is perceived negatively. Again, such a process may affect competition law and its enforcement.
These two scenarios of populist influence on competition law are related to questions of a more abstract nature regarding the relationship between antitrust law, democracy, and regional integration, such as: To what extent is competition law interconnected with the principles of liberal democracy? Does the deconstruction of a legal system based on the rule of law, separation of powers, and checks and balances lead to negative effects for competition on the market? How far do these processes affect regional economic integration, of which competition law is an important element?
The project aims to address these questions by analysing the relation between populism and competition law. First, it examines the ways in which competition authorities and courts adjudicating in competition law cases are subject to negative populist influences. Next, it analyses in what ways competition law is used by populist governments as a protectionist tool. The project takes into account the post-2009 experiences of countries in Europe, and in particular Poland and Hungary, as well as the processes triggered by the rise of populism with respect to EU law. At the same time, it will involve reflections on other countries in the world which are experiencing the rule of populist governments.

Personen

Projektleiter

Dr. Maciej Bernatt

Forschungsschwerpunkte

III.1 Verwirklichung und Perspektiven des europäischen Binnenmarktes