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Busscher, R.J.

Department of Ethics, Social and Political Philosophy

Competition Law in Kant’s Legal Theory

In the literature, commentators have claimed that EU competition law is based on Kant’s legal theory. An important reason for this is the influence of Ordoliberalism on EU (competition) law, of which, in turn, it is claimed that Kant had a decisive impact. The question that has not been answered yet however, is whether there is any form competition law possible in Kant’s legal theory in the first place. The main research question of this thesis is therefore whether an important part of competition law, the rules on monopolies or dominant undertakings, can be introduced in Kant’s legal theory.

To answer this question, first a general description of the main characteristics of Kant’s legal theory is given. After that, a brief explanation of concepts that are crucial for competitive situations, such as the (public) market, iustitia commutativa, prices and competition itself, follows. As Kant’s text’s do not provide a clear-cut answer, two practical competitive cases are introduced - predatory pricing and tying - and a further clarification of Kant’s republican concept of freedom as non-domination is given. On basis of this, the two cases are analysed.

The analysis consists of two routes: that of private coercion and that of the public duty to guarantee (formal) equality of opportunity. At the former it becomes clear that monopolies as such are not prohibited and buyers do not become subject to its choice by, for example, selling at excessively high or low prices. If it can be proven empirically that (potential) competitors’ market access can be denied by a monopoly through use of the price mechanism, then this should be prohibited, as it is not a right a private undertaking can have. The latter public duty requires that all positions in society should be open for everyone. A monopoly could possibly make its position non-contestable. The question is then however whether the market should be perceived as a whole or that it can be divided in different (product) markets), and for how long positions should be open, in other words what is understood by ‘open for everyone’. Depending on the interpretation of these concepts and answers to empirical questions, a people could decide to introduce rules on how undertakings cannot compete by imposing self-legislation.

Last modified:24 November 2016 1.49 p.m.