EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

to apply for leniency?” etc. – OECD 2108a, p. 2). These questions are irrelevant from a competitive analysis perspective and should remain so. Moreover, they introduce the seeds of artificial gender-based segregation into the social discourse. If, for example, some gender-related price discrimination occurs, it should be addressed by consumer protection means and not by competition law. Attention is drawn to a novel but startling proposal that, in assessing abuse of dominance, it should be examined whether a particular market feature or behaviour would negatively affect women’s welfare rather than the consumer welfare as a whole (OECD 2018a, p. 4). Ad absurdum, one could segment into senior welfare, welfare of ethnic or racial groups, etc. I don’t think that’s the way to go. Proposing ways for competition policy to integrate gender consideration (OECD 2018b, p. 6) is highly controversial and ambitious and may result in overregulation. It consequently could (along with other attacks on the very nature of AT) lead to a dilution of competition law as a tool to protect competition and to its gradual recasting as an instrument to help achieve overarching social goals. This topic, like many others, deserves special attention, and I amonly commenting on it as one of the challenges for contemporary AT. My hypothesis is conservative and relies on the traditional division of labour between different government agencies and between different branches of law. If, for example, it is argued that women pay higher prices for a range of similar products (OECD 2018b, p. 39; Haucap et al. , 2021a, p. 409).), the same can be said of any group of consumers, including men, the retired consumers – regardless of their gender, and members of various ethnic, cultural, sexual, and other minorities. However, it is not clear why and how competition law should deal with this fine (albeit competitively irrelevant) distinction. Similarly, it has also been argued that the perpetrator of anticompetitive conduct should not traditionally be seen as the unit to which the conduct is attributed, but that a distinction should be made as to whether the conduct was caused by one or the other gender-specific individuals within the undertaking concerned (Haucap et al. 2021a, p. 410). The fact that women are allegedly less prone to collusion (if proven) may be interesting from a social psychological or criminological point of view and may have implications for competition compliance measures, but it hardly has an outward impact and AT relevance. I consider such research to be comparably (ir)relevant from the viewpoint of AT, as if we were investigating the unlawful tendencies of other arbitrarily defined groups, e.g., according to their ethnicity, race, religion, political orientation, etc. Not to mention that attributing selected individual personal characteristics (e.g., less inclination to cartelisation) to members of certain groups as statistical units is politically and ethically very controversial and methodologically dubious and has been tragically discredited repeatedly throughout history. I don’t think it’s worth attempting, despite the attractive prospect of being “progressive” and simply “in”.

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