EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Because I don’t want to be too unpleasant, I won’t go into the further paradox of this “gender-related” approach, but only point out its considerable hypocrisy; are the arguments asserted there to be associated with (socially and psychologically conditioned and subjectively felt) gender , or with (biologically determined) sex ? Are these supposedly different competitively relevant characteristics attributed to women only associated with “traditional” and majority biological women, or do they also apply to “declared” women because of gender opt-in, even though their biological nature and hormonally influenced psychology corresponds to “biological” men, who in turn are denied these different group characteristics? Leaving aside other possible gender and other minority variations. If (however vaguely defined) gender is to be declared a public good (ibid, p. 40), it must also be protected (after the goal has been properly defined) by adequate political and legal means. There is no doubt that functional competition is a public good indispensable to the functioning of the market. Attempts to take into account not only gender but any other aspects of identity in competition analyses (ibid, p. 39) may result in eroding and confusing the protective purposes of both laws and authorities. Balancing and trade-offs of different societal goals is a prerogative of politics and should not be addressed by specialized regulation to the detriment of its own purpose. 4.3 Privacy and Antitrust Privacy has come to be counted among the aspects of competition that can negatively affect it (OECD 2021, p. 16 and cases referred to there: Facebook/ WhatsApp and Microsoft/LinkedIn ). Privacy has become particularly important with the development of digital platforms that use data provided for free by their users to transact business. This is considered to be a kind of market failure that should be remedied by law. Niether has the AT been forgotten, which should perform specific tasks in addition to specialised data protection legislation. Market powerful companies can afford to provide less privacy protection to customers than in a competitive environment. Therefore, it is also considered whether privacy protection can be ignored from a competition perspective and should not be considered only as a consumer protection issue. This is to some extent a logical consequence of the promotion of a rather wide-ranging consumer welfare standard in competition law; after all, privacy protection also forms a qualitatively important part of “consumer welfare” in the broad sense, similarly as feeling of gender related satisfaction or of alleged sustainability. But it is not sufficient substantiation for AT authority to overtake the tasks of guarding it instead of others. We can also observe an implicit criticism of the too broad “consumer welfare dogma”, which should also include user privacy, which indirectly tempts to expand the boundaries of competition law (Robertson, p. 189).

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