Competition law through the lenses of national constitutions: connecting competitive markets with socio-economic and environmental values

Abstract This article analyses competition legislation through the lenses of national constitutions, given that these constitutions establish the foundational structures of national legal systems to which competition laws inherently belong. Building on existing constitutional literature, it posits that competition laws should be construed in accordance with the values promoted in national constitutions. The analysis is situated within the contemporary discourse surrounding the ongoing ‘just transition’ towards a carbon-neutral economy, i.e., a process in which socio-economic values (pertaining to the right to work, right to healthcare, and right to food) and environmental values (pertaining to a clean environment, biodiversity, and reducing emissions) constitute guiding tenets. Such a context invites the question of whether competition laws should be built and interpreted in a manner that facilitates the enhanced integration of socio-economic and environmental values enshrined in national constitutions. These contemplations are pivotal, since law plays a constitutive role in designing socio-economic structures, with the structuring of competitive markets being no exception. In light of this, the paper conducts a review of how national constitutions across the world safeguard competitive markets, socio-economic values, and environmental values. Specifically, the article categorizes the regulatory frameworks identified within all 52 national constitutions that explicitly protect competitive markets alongside socio-economic and environmental values. Subsequently, the paper transitions to an examination of two countries—Poland and South Africa—to elucidate how national competition laws reflect constitutional choices. It demonstrates that their constitutions and competition laws were shaped in a manner that offers a different space for incorporation of socio-economic and environmental values in the interpretation of competition laws. The article relies on an analysis of the texts of national constitutions and competition statutes, as well as selected case law of constitutional courts and ordinary courts. Overall, the article seeks to incite an academic discourse regarding the significance of national constitutions in the realm of antitrust. At the same time, it expands upon the literature concerning economic constitutions, especially regarding the European Union and its Member States.