La Constitution Économique Européenne - L'actualité du modèle ordolibéral

Abstract

Today, the concept of a "European Economic Constitution" is broadly used in the scholarly debate in the different official languages of the European Union. Historically, the rules of the founding treaties relating to the economy were inspired by the ordoliberal ideas of German lawyers and economists after World War II. The preceding article analyzes the relevance of the ordoliberal model after the entry into force of the Lisbon Treaty, which has also changed the rules on the goals of EU law. Thereby, it takes account of today's challenges, including the economic and financial crises as well as economic globalisation. From a terminological point of view and from a historical perspective, the article distinguishes between three different notions of "Economic Constitution". For better understanding the ordo-liberal theories, a mixed - both legal and economic - notion should be preferred, according to which the "Economic Constitution" includes all legal rules that are essential for establishing the preferred economic system. Historically, ordo-liberalism developed in reaction to the German experience with the nazi dictatorship. This explains why protection of economic freedom is advocated as the principal objective of the "Economic Constitution" by the ordoliberals. Based on a concept of "interdependence of orders", ordo-liberalism starts from acknowledging the existence of a "paradox of freedom" (Plato, Popper), which does not only require that democracy be protected against its self-desctruction (as experienced in Germany in 1933) ; it also explains that economic freedom is in need of being protected against restraints of competition. This is why competition law has always been put at the center of the German "Ordnungspolitik" and why competition law has been ranked so highly even in the first founding treaties of European unification in the 1950s. In Germany, just after the adoption of the Grundgesetz as the new "Political Constitution", the political advocates of ordo-liberalism forged the concept of the "social market economy", according to which the competition principle also constitutes an essential and integral part of the welfare state. After World War II, the German ordoliberals have certainly identified additional elements of the "Economic Constitution" such as the principle of freedom of contract, private property and civil responsibility, just to mention the most important ones. It is the principle of freedom of contract which has the closest links with the protection of competition in the market economy. Freedom of contract is the indispensable precondition for competition to work ; at the same time this principle is in need of protection of competition against the power of monopolies. Hence, ordoliberalism advocates a strong and responsible state that guarantees the respect of the rules of the game without defining the results of the economic process. Ordoliberal ideas have entered the rules of the European treaties on the economy. In the field of competition law, this influence has inspired the courts to develop a concept of institutional protection of competition, based on the guarantee of undistorted competition provided for in the provisions on the goals of the EC Treaty. This concept has recently been reconfirmed by the Court of Justice in a series of cases against neoliberal tendencies that favour economic efficiency and consumer welfare as the exlusive goals of competition law. In November 2011, the Court has also clarified that the transfer of the guarantee of undistorted competition from the Treaty provisions to a mere Protocol to the Lisbon Treaty has not weakened this principle. Taking account of the active and responsible role attributed to the State, today's relevance of ordoliberal thinking is almost undeniable in the light of the economic and financial crises, which has shaken the ideology of unlimited economic freedom. In addition, ordoliberalism, thanks to its social dimension, offers a more appropriate and convincing foundation for economic inclusion of developing countries in today's process of globalisation. © De Boeck Université. Tous droits réservés pour tous pays.