Feminist Competition Law

Abstract

This paper takes up the challenge to show what a feminist approach to competition law and policy is, and what its contribution can be to the scholarship of competition law.

Despite increasing attention from academics and policy makers concerning the intersection of gender equality and competition law, most debates and discussions add gender to the analytical framework, economic calculation or survey, but fail to investigate the gender divisions that deeply bifurcate the structure of modern society, including legal rules, formal and informal institutions and enforcement practices. The implications of gendered lives, experiences and social realities on people’s preferences, choices and decisions in markets remain outside of such discussions. Therefore, feminist methodology and feminist social science research on gendered social realities remains a blind spot in current debates and discussions.

Remarkably, a similar blind spot exists in the diverse strands of feminist social science research, notably feminist legal and economic scholarship that has already been applied to various legal fields, but have engaged less thoroughly with the legal frameworks of market processes. Therefore, competition law has been a blind spot in these investigations so far.

By focusing on the central role of gender and women’s experiences, feminists take a contextualized lens and draw attention to the complexity of the economy, economic activities and the embeddedness of markets in broader social, economic and political contexts. Their analysis is multidimensional and pluralist, with a strong focus on human diversity and intersectionality. Feminist approaches go beyond merely adding gender to the analysis and investigate the deeper layers of legal rules, economic models and enforcement practices that entrench gendered power structures, dynamics, institutional arrangements and produce and reproduce various forms of inequalities.

From the richness of feminist methodologies, I draw on feminist legal theory, feminist (institutional) economics and feminist political economy to demonstrate how feminist approaches probe the alleged ‘neutrality’ and objectivity of competition law and to unpack the gendered nature (and impact) of its underlying legal rules, concepts and enforcement practices. I explore various assumptions embedded in existing competition rules and concepts, show which gender-based consequences the application of these rules and concepts may have and how policy makers and enforcers could implement gender into the substantive analysis of specific cases as well as into the procedures and institutional arrangements in the enforcement of competition law.

I argue that feminists’ analytical lens is, in fact, intimately related to the analytical lens of competition law. The focus of their analysis concern power structures and dynamics, investigate how various social and economic actors are impacted through these power inequalities and strive to control excessive power and change existing social, economic and political structures. However, the site and scope of their analysis differs. Competition law is concerned with market processes, structures and activities, while feminists repeatedly and forcefully called attention to those activities, processes and arrangements that lie outside of the market and the economy.

Keywords: feminist legal theory, feminist political economy, feminist economics, competition law, competition law enforcement, consumer, intersectionality, digital economy, priority setting, participation

JEL Classification: D18, D63, K21, K42