Eric Homburger, Zur Funktion des Kartellrechts in einer auf Privatautonomie beruhende Wirtschaftsordnung, in: Homburger Eric, Ausgewählte Schriften, Zürich 2000, p. 47-63.
Summary
In the within essay, Prof. Dr. Eric Homburger analyzes the thoughts and reflections of Prof. Biedenkopf and Prof. Schluep from the point of view of Swiss antitrust law.
In the first part of the essay, Prof. Homburger describes the article, “Legal Aspects of Concentration”, which was written by Prof. Biedenkopf and published in the “Zeitschrift des bernischen Juristenvereins” in 1972. In this article, Prof. Biedenkopf analyzed the relationship between civil law and economic order and emphasized the need for a contemporary interpretation of private law institutions. Prof. Biedenkopf also discussed the different paths that have been taken in the Swiss and German legal systems in the treatment of competition restrictions. In particular, Prof. Biedenkopf addressed the relationship between freedom of competition and private autonomy. At the same time, Prof. Homburger expresses his point of view advocating a functional and a regulatory interpretation of private institutions.
In the second part of the essay, Prof. Homburger explains the three main pillars of Prof. Biedenkopf’s thought structure. Furthermore, Homburger notes that Biedenkopf’s arguments are mainly on an abstract, and not on a concrete, level, which is similar to Prof. Homburger’s own arguments. Prof. Homburger then criticizes the fact that Prof. Biedenkopf has not taken a stronger stance on the case by case decisional method, which would require a specific weighing of interests.
In the third and last part of this essay, Prof. Homburger expresses his concerns
about a systematic prohibition of trusts; this is because such restrictions cannot completely prevent the entire creation of market power and the formation of groups of companies. Prof. Homburger evaluates the principle of competition as a means of “domesticating private economic power”. He concludes that the instrumentality of antitrust law and the functionality of the private law institutions should continue.