Administrative Law and Competition: How Administrative Law Protects the Market? Leviathan as an Ordinary Market Player in Europe?

In most Western countries liberalism meant that administrative law provided a remedy against public action that would breach the principle of the freedom of trade. But in doing so freedom of trade was a freedom among others, it had no specificity in administrative law. It was enforced against the State exactly as any freedom would be enforced. It would prevent any intervention of a public body either by regulation or provision of a public service that would not be authorized by Parliament. Parliament is the sole guardian of freedoms, and the freedom of trade was no exception.

Current legal developments would autotomize the protection of the market in extending the scope of competition law to State actions. In contrast to the United State where the Supreme Court held that State actions were immune from antitrust litigation, the ECJ extended the reach of competition law to State actions. In France, the Conseil d’Etat even created a new ground for review, entailing thus an extended control of administrative decisions and public services.

What singles out Europe is the reach of competition law and to what extent it undermines the very essence of state intervention in the market. As David Gerber has showed, this evolution can be explained by the ordoliberal origins of competition law in Europe.