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Schroeder, Dirk --- "Normative and Institutional Limitations to a More Economic Approach" [2011] ELECD 352; in Drexl, Josef; Kerber, Wolfgang; Podszun, Rupprecht (eds), "Competition Policy and the Economic Approach" (Edward Elgar Publishing, 2011)

Book Title: Competition Policy and the Economic Approach

Editor(s): Drexl, Josef; Kerber, Wolfgang; Podszun, Rupprecht

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448841

Section: Chapter 15

Section Title: Normative and Institutional Limitations to a More Economic Approach

Author(s): Schroeder, Dirk

Number of pages: 12

Extract:

15. Normative and institutional
limitations to a more economic
approach
Dirk Schroeder

1. THE NEED FOR JUDICIAL CONTROL

Economic activity is protected by basic or human rights. In Germany,
Articles 2(1) (right to development of personality), 12 (occupational
freedom) and 14 (right to property) of the Constitution (Basic Law) confer
such protection. At the EU level, Articles 15 (freedom to choose an occu-
pation and to engage in work), 16 (freedom to conduct a business) and 17
(right to property) of the Charter of Fundamental Rights are the relevant
provisions. By its nature, competition law limits economic activity, in
particular by requiring the prior authorization of mergers, by prohibit-
ing the abuse of a dominant position and by prohibiting agreements that
restrict competition and which positive effects do not outweigh this nega-
tive effect. Hence in order to safeguard the freedom of economic activity,
the application of competition law by the authorities charged with its
implementation must be subject to effective judicial control.
The need for effective judicial control is not limited to cases where
competition law restricts economic activity via ex ante control, but it is
particularly pressing in such cases, because ex ante control imposes greater
limits on enterprises' behaviour than ex post control. Today, ex ante
control is limited to mergers. While there was a certain degree of ex ante
control with respect to Article 81(3) EC in that under Regulation 17/62
an exemption granted by the European Commission could not go back
in ...