The ordoliberal school of competition thought is a distinct linguistic community whose conceptual and semantic influence extended far beyond Germany and eventually shaped the European legal order. Linguistic misunderstandings still impacted the negotiations of the founding European Treaties, but in the subsequent application of the new rules, the Freiburg School’s ordoliberal ideas gained in popularity. In the early 2000s, this ordoliberal language was replaced by neoliberal concepts borrowed from the Chicago School. The study combines archival materials, oral history interviews, case law and Text Mining methods. In doing so, it contributes to the historiography of EU competition law, the post-war history of ordoliberalism, and methodological debates about Digital Humanities.
Erscheinungsdatum: 13.11.2023

lgrsnf/küsters_neu.pdf

Anselm Kusters

Klostermann, Vittorio, GmbH

Germany, Germany

2023

Introduction: Popularising ordoliberal concepts in Brussels
Part I: Ordoliberal and neoliberal competition thought
Chapter I: The birth of ordoliberal language: analysing the early Freiburg School as paradigm change (1920s–1940s)
A. Critical mass of empirical and theoretical ‘anomalies’
1. Economic power and laissez-faire liberalism
2. The economic discourse, the Historical School, and views of competition
3. The legal treatment of competition and the interdependence of law and economics
4. The political discourse, vested interests, and the ‘strong state’
B. Development of an alternative conceptual and semantic ‘paradigm’ for competition
1. Ordoliberal competition policy
2. Market structure as ‘complete competition’
3. Market behaviour as ‘performance-based competition’
4. Socio-cultural effects of competition
5. Ordoliberal language
Conclusion
Chapter II: Translating ordoliberal language into legal rules: the quest for a German Competition Act (1945–1957)
A. Context of the debate
B. Early ordoliberal attempts: the drafts of Miksch, Eucken, and Josten
C. The early draft of Böhm
D. The Gesetz gegen Wettbewerbsbeschränkungen (Act against Restraints on Competition)
1. The path to the GWB
2. The explanatory memorandum
3. The Bundestag Committee report
4. Legal structure and content of the final GWB
E. Competition ‘light:’ the ‘social market economy’ narrative goes viral
Conclusion: ‘It will be said later that these were our ideas’
Chapter III: A ‘neoliberalisation’ of ordoliberalism? The development of competition thought in ORDO (1948–2014)
A. Ordering ORDO: identifying post-war varieties of ordoliberal competition thought
1. Distant reading: estimating a Structural Topic Model
2. Close reading: analysing ordoliberal competition topics over time
3. Reflections on content, vocabulary, and methodology
B. Another paradigm change: did neoliberalism hijack ordoliberalism?
1. Hayek’s conceptual and semantic legacy
2. ORDO’s public choice revolution
3. Resisting the trend of mathematisation
Conclusion: change and continuities
Chapter IV: Beyond ORDO: the neoliberal competitor from Chicago (1958–2015)
A. Old Chicago School (1920s–1940s)
B. Radical re-invention of Chicago (1950s–1960s)
1. Starting the ‘fire of truth:’ institutional changes
2. The early JLE articles: McGee, Coase, Tesler
3. The new perspective on competition: differences to ordoliberalism
C. Consolidation around the consumer welfare standard (1970s–1980s)
1. The Posner and Bork treatises: competition as maximisation of economic welfare
2. Comparison with ordoliberal thought
3. Academic and legal success
D. Post-Chicago: methodological challenges, conceptual continuity (1990s–2010s)
1. Post-Chicago criticism: industrial organisation economics and game theory
2. Theoretical developments: RRC and unilateral effects
3. Neo-Chicago: error-costs and defence of efficiency
Conclusion: diverging paths
Part II: European competition law: from ordoliberalism to neoliberalism
Chapter V: Negotiating ordoliberal competition? Establishing the legal and semantic foundations (1950–1962)
A. Schuman declaration
B. ECSC Treaty
C. Treaty of Rome
1. Early preparations
2. The influence of the German Scientific Advisory Board
3. Reconstructing the negotiations of the Treaty of Rome
4. Assessing the economic-theoretical background of the ‘rules of competition’
D. Regulation 17/62
Conclusion: the ‘Strasbourg duel’
Chapter VI: An ordoliberal language game: developing a conception of competition in European case law (1950s–1980s)
A. The understanding of competition of the High Authority
1. The conception of ‘competition’
2. The Geitling case
B. The understanding of competition of Commission and Court
1. The conception of ‘competition’
2. Anti-competitive agreements through the lens of ‘complete competition’
3. Abuse of dominant position through the lens of Leistungswettbewerb
4. The ordoliberal competition game in the Commission’s decisions
Conclusion: semantic and conceptual synthesis?
Chapter VII: The ‘error of economism:’ the EU Commission’s More Economic Approach from an ordoliberal perspective (1990s–2010s)
A. Historical context: the MEA and its Chicago / Post-Chicago School elements
1. (Vertical and horizontal) agreements
2. Merger control
3. Unilateral conduct
B. MEA and ordoliberalism: friends or foes?
1. Form-based rules vs effects-based discretion
2. Econometric expertise vs democratic decision-making
3. Type I vs type II errors
4. Consumer welfare vs consumer choice
5. Competitive vs economic efficiency
C. Semantic consequences of the MEA: quantifying EU competition law speeches
1. Counting
2. Topics
3. Sentiments
4. Qualitative analysis: Monti and his neoliberal economists
Conclusion: a change in the competition language game
Chapter VIII: Answering Bork with Text Mining: a corpus-linguistic analysis of EU competition law (1961–2021)
A. Background: European competition law as a marketplace of ideas
B. Data: constructing a corpus of EU competition law
C. Results: ‘Competition’ as understood by the Commission and the Courts
1. Competition goals
2. Competition collocates
3. Competition language
4. Competition sentiment
5. Competition topics
Conclusion: first ordoliberalisation, then neoliberalisation
Chapter IX: EU competition law as ordoliberal ‘economic constitution’? A conceptual history (1920s–2020s)
A. Conceptual origins in the Freiburg School: competition as a constitutional decision
B. Economic constitution and Germany’s Basic Law: debates and adaptations
C. Ordoliberalism scaled up: Mestmäcker and the EEC economic constitution
D. Diffusion phase: tracing the concept in the Court’s case law and the Commission’s papers
E. In search of a global economic constitution: exporting Ordnungspolitik?
F. The economic constitution in a period of crises: from Eurozone crisis to pandemic
Conclusion: conceptual overreach? From the Prussian Gewerbeordnung to global reach
Conclusion: A ‘re-ordoliberalisation’ of European competition law?‘
German language summary
Appendix
Bibliography
I. Primary sources
II. Cases
III. Computational packages (selection)
IV. Literature

2024-05-01