Gender-inclusive priority setting in EU competition law enforcement

Abstract

The paper analyses how the substantive and procedural aspects of priority setting could implement considerations of gender equality and guarantee women’s equal market participation. Despite the EU’s robust constitutional framework and its horizontal clauses, gender equality remains an invisible issue in EU competition law. Notwithstanding the potential of priority setting rules and practices as a tool to combat inequality, currently they do not explicitly implement considerations of gender equality in the EU. Gender-sensitive indicators could be embedded across the priority setting rules and practice cycle. Four aspects of priority setting are particularly suitable for the consideration of gender equality: agenda setting, the substantive criteria guiding prioritization, conducting ex-post impact assessment of priority setting decisions, and the procedure in which prioritization decisions are being taken. The paper proposes to draft a new Recommendation on priority setting within the framework of the European Competition Network (ECN), nudging competition authorities to base their priority setting rules and practices on criteria based on sustainable, inclusive growth with a strong focus on gender equality. Women make major contributions to the economy, and their economic participation and unrestrained access to markets contribute vastly to inclusive growth and sustainable development.1 However, modern economies are characterized by gender divisions of labour, gender inequalities in income and wealth, gender hierarchies in industrial enterprises, gender differences in rights of ownership, and conditions of employment.2 While women represent remarkable spending power and economic influence, controlling the dominant share of global consumer expenditure, they are overrepresented among economically vulnerable groups of population with little to no economic independence.3 Women are known to have less income, wealth, and capital on average than men.4 Moreover, women are not only economically more vulnerable than men, but also have unequal access and unequal opportunities to participate in the economy. This is due to the fact that gender and gender relations, in interaction with other structures of social hierarchy, such as class, ethnicity, race, and age, shape economic relationships, preferences, choices, and decisions by businesses and consumers.5 Accordingly, gender differences influence the allocation of resources in the economy, and while the specific nature of gender relations varies among societies, the general pattern is that women have less economic autonomy, fewer resources at their disposal, and limited influence over decision-making processes.6 Women’s lack of equal participation in the economy and gender inequalities in markets have many causes including discriminatory laws, policies, and social norms coupled with shifts in the global economy and demographics, technological advances, and protracted crises.7 Part of this assemblage of barriers are the laws, policies, norms, and institutions that structure markets, which operate with a gender divide mirroring the broader organization of society along gender lines.8 Competition law is a fundamental area of the law to safeguard open and competitive markets, and to ensure that competition functions as an effective accountability mechanism against arbitrary use of private economic power at national and supranational (EU) levels.9 While debates on the optimal welfare standard guiding competition law enforcement have been long ongoing, and a large number of competition authorities adopt a consumer welfare standard globally, competition rules are generally aimed at protecting citizens from the negative impact of the undue acquisition and exercise of market power, whether private or public.10 Through preventing anticompetitive practices resulting from restrictive agreements between firms, abuses of dominant position, mergers which lead to excessive market power, and state aid that provides economic advantages to selected firms, EU competition law influences who has access and under what conditions to goods and services, and who can participate in markets. This raises the question of whether and how competition law and policy can address gender inequalities in markets and facilitate a more equal economy for women. Which tools and mechanisms EU competition law has to address the barriers to women’s access and participation in markets as consumers of goods and services, or as entrepreneurs? More concretely, this paper focuses on the question of how competition authorities in the EU can implement a gender lens in their priority setting rules and practices. Priority setting is the way competition authorities select which cases they pursue and which they disregard.11 Setting priorities entails administrative discretion on the side of the competition authorities and provides them with the freedom to choose their course of action and to make choices that best fulfil the public interest that the law protects. At the same time, competition authorities’ priority setting has vast socioeconomic consequences for economies and citizens’ welfare, and impacts wealth distribution across various groups of society, including women. The paper analyses how the substantive and procedural aspects of priority setting could implement considerations of gender equality, protect women as vulnerable citizens, and facilitate their equal market participation. It investigates this question against the EU’s legal and constitutional order and its underlying integration mechanisms that support the integration of gender equality as a constitutionally embedded fundamental right under EU law. By relying on the authors’ empirical research on priority setting rules and practices in the EU and its Member States, and the UK12 as well as the theoretical framework they developed,13 the paper offers a theoretical and a practical framework for embedding gender within competition law enforcement. In the European Union’s legal order, gender equality and competition law are both constitutional values.14 First, undistorted competition is a fundamental constitutional value in the EU legal order.15 EU competition rules are to control economic power, safeguard undertakings’ freedom of economic activity and consumers’ choice, and guarantee equal opportunities for all EU citizens to participate in the internal market. When competition is effective in markets, citizens benefit from lower prices, better products and services, and innovation. While the central concern of EU competition law is to target firm behaviour that can harm the competitive process and ultimately the economic interests of consumers,16 is also a central of the integration and as a fundamental of the EU’s internal equality is also a value of the on which the is and under is to the Member and a fundamental right in the of equality to a state in which access to rights or opportunities is not by Accordingly, can be as and women equal access and use of equal participation in and and from The of gender equality the of equal to substantive equality is to opportunities they are equality in the EU as a tool of economic and by the of the However, over the a fundamental value and of EU by the of horizontal clauses, the European of and the of the the EU various aspects of gender equality, and the a of a gender in all EU policies, while also specific to or gender the EU is as a global in gender equality, robust equal and and the gender policy and to address Competition law is not action as gender equality its at controlling excessive economic power to the for the and of competition has been the of consumer welfare the of economic in the of this standard is that not the welfare of all groups It to consumers within the market under and their economic while specific and of By on the of consumer welfare, competition law and policy do not the of such as age, race, and social income, or the potential of anticompetitive practices or the competition law that vulnerable consumers and citizens are by negative market consumers than known as the and are at a of negative impact on their the consumer welfare standard has due to its focus on and while to of broader social such as social and economic the rights of or the distribution of economic power within of that competition can and contribute to more equal distribution of wealth and that competition on other than such as or products and services, can contribute to and to this competition law the competitive process and economic power that the of a Despite on and little has been to gender inequalities and their with market mechanisms and excessive market While gender equality has been as a of economic growth and social and women’s economic and are as for and sustainable has been little consideration of how economic law and could address economic and implement gender EU competition and have not the question of how the enforcement of EU competition norms, institutions and decision-making impact women. This is as EU competition law is embedded in a constitutional gender equality has been a value of the EU legal order the of equal for of the of the the EU has not only a of equal and but has also a framework its for gender all of its policies, gender By use of the by social to and social from the of women’s this paper an based on the in EU competition law. The is a that to whether and enforcement tools women’s and the gender of rules and practices that or It the gender of a legal or social have women been of for whether the competition rules with their of consumer welfare standard of women’s in the of preferences, choices, and they markets and market power and and on an exercise is in its the and of women’s of social and power Women’s social are by of at the of race, social position, and Accordingly, can contribute to the that in with other an in markets and market The of the competitive process is a value of the EU’s legal and economic order, and as such an of of the on the European which among the EU of equality, of and for When the they to the EU’s economic and legal order, which as a explicitly the of undistorted by the competition law a in EU Member States, due to market the process of EU and strong supranational enforcement mechanisms of the European Moreover, the EU is the enforcement of the EU competition rules on anticompetitive agreements and of with the Member Competition authorities the based on their national procedural and within their and constitutional In this the of administrative and setting for the effective enforcement of the EU competition a fundamental of the EU legal order, competition law and by all Member States, and the of competitive markets is a value for all Member is also a of the EU legal order, as by equality between the Member and on equal between women and is also an of the EU as in that the EU is on of and that equality between women and equality is also a fundamental which is in of the of the EU equality rules an economic to of competition between within the the EU’s to equality law has and the of gender equality and the the EU’s gender equality have a policy from a preventing competitive within the for with to the of equal and to to the of and to a legal and framework with of the of the of in the EU constitutionally the to gender equality gender all policy and by gender equality and guiding legal of the EU. the of substantive equality the new various of and including an By a new on the social policy of the European integration the to the constitutional framework of including competition law and gender equality, a framework the economic and social of the legal By a competitive social market as an of the the on European the that social and economic interests be Accordingly, to a market economy with social by including both economic and social under the of market The of the horizontal also a of such have an to the EU’s to ensure between as not to the of policy and which be in all of EU By social and such as the of gender equality, they a constitutional to all of EU law and While all of the way integration has to remains the horizontal clauses, explicitly that the EU to gender inequalities and gender equality. Accordingly, the EU has to inequalities and gender equality all its and in its of Despite this robust constitutional and while the has that the of the be as and gender equality remains an invisible issue in the area of competition law. in their and on the of EU competition and no cases to gender equality in the practice of the or the a and in EU the horizontal have been as tools by the but their has been more in policy than in the of the Accordingly, their has been to a to the of and of equality within the EU legal The EU’s by that the gender by including a gender in all of policy in all EU policy internal and equality and competition law could be as of social and economic This also with the economic nature of the European integration and the constitutional between economic and social at EU However, social has in the EU’s constitutional framework and a inclusive internal market economic and social are at the EU is not a new equality considerations with the of a competitive market. of and wealth for many a central in the competitive markets in competition that that by economic power and equality of competition to economic The of equality of also central to the of competition which the and enforcement of EU competition While the in EU competition law from the a economic the of equality of competition law excessive state with the on the between the of competition law and has in the The of and of economic power in the of a large are as a of economic and social market power has been as to of Accordingly, both the constitutional framework and the of competition law in that EU competition law with the of competitive markets economic power is and economic opportunities are the EU’s constitutional framework is based on a competitive social market as well as the constitutional mechanisms in the horizontal clauses, both an to the of gender equality and competition law. This with the of gender equality as substantive equality in of women’s consumers and equal access to markets, and services, and their equal opportunities to participate in their of a The to the question of which EU competition law can in gender and how to and the integration of gender equality in competition law. In the framework of competition law and gender can a at various of the and enforcement. can by embedding the gender lens in the substantive of the competition law that the of the consumer and its with market power has been as a of but has not been what women’s preferences, choices, and consumer behaviour fulfil in the and market power and competitive in competition power and gender for that and access to services, or Accordingly, that for women can women gender equality and of equality in the of the competition law not First, raises value in and legal the of the power to of wealth in society to competition a that is to Competition as not have the to make value While they are who have the to they lack the to economic and the of the substantive competition law for between economic and This in legal the of a or the to be as competition law enforcement this to the that competition law and policy are not the tools to or other of the nature of the competition rules in the the substantive of the competition rules the of interests in to with legal as to the of that an from the competition in the many of can be by embedding gender equality considerations in the competition authorities’ as to the substantive competition law While competition authorities’ enforcement against anticompetitive practices can vast for society, competition authorities’ resources are limited and can target only a limited number of the of which potential they pursue and which they is of fundamental for all Setting priorities influences the of and impacts wealth distribution across various groups of competition authorities’ priority setting has vast socioeconomic consequences for economies and citizens’ welfare, including women. Accordingly, the power to the enforcement priorities provides an to gender within competition the substantive competition law Competition authorities for focus on markets or practices that women. priority setting provides for and public participation priority setting are law such as or policy law tools the competition authorities to the nature of social debates over and norms and which not be to them the substantive of the law. Competition authorities can interest groups and the general public on their priority setting and them to Despite the potential of priority setting rules and practices as a tool to combat inequality, currently competition authorities do not explicitly implement considerations of gender equality in the EU. a the allocation of enforcement and the and they are not among the of society and not who them markets have been to the of a consumer to their social position, economic or vulnerable citizens, for can be by anticompetitive practices in markets such as and Competition authorities do not or the impact of the on from demographics, social race, and Moreover, they limited for the of such vulnerable groups of society in their a groups are at a of anticompetitive priority setting the freedom and the power to choose which cases to pursue and which to and resources to the such power authorities the to focus on of economic and can be by the the or the competition as can contribute to enforcement Despite the of prioritization choices, research that is a large of priority setting and practices across national legal in the the question of what of competition law the European and the Member national competition authorities and how such decisions have not been in The and procedure for setting enforcement priorities have not been by the EU of the an on the Member to their competition authorities to their enforcement and to that they do not to be an enforcement However, this legal has not been by or EU law to Member or in setting the enforcement Moreover, competition authorities have and invisible priority setting practices. are by no or rules on how and they their enforcement and are not to or their prioritization In many competition authorities their enforcement priorities in a of their enforcement are to to by consumers or to and than conducting their prioritization are to focus the enforcement on a of anticompetitive behaviour in the interests of than of The EU’s of for that while the European priority to cases which have the potential impact on the internal market and on criteria to be in to ensure the of cases with the to competition or consumer welfare in the internal market and across all economic By relying on the authors’ this analyses how priority setting could implement considerations of gender equality and address practices that gender inequalities to First, gender equality can be in priority setting rules and practices by on the of markets, on anticompetitive practices in markets that to gender for spending of consumers’ such as services, and priority could be to markets and the of In the women are overrepresented in such as and priority setting could also focus on access to markets, anticompetitive behaviour that market access of and by vulnerable groups such as businesses that in access to and on anticompetitive practices that market access by women access to and Gender-sensitive indicators could be embedded across the priority setting rules and practice cycle. In empirical various aspects of the priority setting to their and in the and Four aspects of priority setting are particularly suitable for the consideration of gender equality: agenda setting, the substantive criteria guiding prioritization, conducting ex-post impact assessment of priority setting decisions, and the procedure in which prioritization decisions are being taken. First, gender equality considerations could a competition that a of enforcement that or practices are a an agenda than only to or of their impact on markets and It in whether to open an or to a and what enforcement tools to use in agenda could focus on and practices women a of their they are in the economy, they are for in social and with such as and In in of and social and of in are The substantive criteria for priority setting to or internal criteria guiding competition authorities’ decisions on whether to pursue or a agenda setting, this not to a specific or but to Setting substantive criteria structures the exercise of the competition authorities’ use of focuses enforcement on and the It both enforcement in cases of or and practices only a limited impact on consumers and It also functions as an accountability substantive criteria accountability and and of the of prioritization to broader While EU law not substantive criteria for Member States, such of the are by substantive by the national or as by only internal substantive by as internal control and by both internal and substantive and are not by or internal criteria at research has that or the competition authorities have competition law prioritization such have on practical of the for legal the of an the resources of the competition the legal the competition is well to an the potential of the and on economic growth indicators or of the the impact of the on the of the economy or the or on consumer In that prioritization decisions of the European and the of the EU Member are by economic growth on consumer welfare as the of their substantive prioritization Setting competition law enforcement priorities based on the consumer welfare standard or other growth indicators not who the of the are and the impact the competition law enforcement have on their priorities by the consumer welfare standard do not between the products or to an for between competitive harm in products markets and an competition authorities could their priorities with to broader growth the have that such as do not a of the conditions that Accordingly, is a for for not and economic growth but also in the of and such not only at the of the economic but also at the and conditions of of and have been from economic growth to inclusive and sustainable a and and to wealth across society and opportunities for In of gender and women’s have been The and the for are both and in the to The and In the the is a tool to the of gender equality. by the European for its in has and by a of gender equality, to the EU’s policy It both and and more effective to opportunities for The have been and in over the in substantive prioritization criteria that their competition law enforcement more with new of inclusive and sustainable The and competition authorities have both the economic that influence and ultimately better for all of The and a more inclusive and sustainable growth to of This is from the on broader and the of competition the with The prioritization the to the which explicitly that harm can be markets do not with in vulnerable in at of and the to markets well for vulnerable the for and its prioritization The of the of the make markets well for and and in the the competition is an economic process that the of It is a to a economy and in a and to contribute to in a that and businesses from the of markets. the assessment of is not limited to or in markets. The social interest in the of the including not only market markets, optimal of legal or and consumer but also public interests such as economic of and The also an enforcement of the large impact its have on a such as and in vulnerable or and impact prioritization choices, for by who can participate as in the participation and various functions in administrative that the of and administrative decision-making in modern not only and administrative authorities in the of markets, but their participation an of and accountability that the of the and the participation of is an mechanism the administrative use of and functions as a to are the to the of the competition or that could ultimately lead to the of the However, such a is of participation rights and no on the competition authorities to address them by a enforcement and is for and for technological in but is only of the considerations for modern public and a between procedural and be This could for between of participation and by to of who are in the public Women as in the public interest of gender equality, could be procedure to the could be which society to a anticompetitive which the competition to the of the by a in a that administrative are not only in the and equality of This women’s to participate in decision-making by being and access to by the participation rules in legal It the of the of law that by the of administrative decision-making be effective participation and of their legal competition authorities can gender equality considerations within impact ex-post assessment of prioritization assessment of competition law is limited in general and to prioritization are no for the of a competition in general and the allocation of enforcement priorities in the lack of such and the in and the impact of the enforcement the limited ex-post of competition law enforcement to focus on the number of in a or on growth indicators such as consumers’ the in resulting from the competition policy enforcement in the market by the of the Competition authorities little on the impact of their of cases and enforcement is little on the impact of the enforcement on the of or the of products or This by the EU of for the European for on than on and the of its enforcement for gender equality considerations within impact prioritization in with the EU policy on gender impact the European a of in its to gender the policy from policy to and While the not gender impact as a has the consideration of gender within its general impact assessment equality is not a of social but also a fundamental of sustainable and inclusive By equal opportunities in markets, can facilitate women’s potential as to and a competitive markets are to and in a including the interests and of women. While the of EU competition as a area of the EU legal and economic order, has been to protect competitive markets and goods and for a broader constitutional value that a social order well and of specific The and the constitutional of EU competition law are with the of equal which is a of gender equality as a constitutional and fundamental right in EU law. Despite this strong constitutional of the between competition law and gender equality, and mechanisms of gender the horizontal clauses, their invisible both in the EU and in national competition law This paper offers a but enforcement tool to gender equality in the enforcement of competition law. It how gender equality considerations could be in the priority setting rules and practices of competition authorities to how such could be in the substantive of the competition law While being of the administrative and constitutional across the EU Member States, but also the central and the in EU competition law policy across the the this paper is a of the Recommendation on the power to priorities in the framework of the the to priorities the could within the framework of the a that on the way prioritization criteria are the EU has its growth which is based on the of and inclusive growth and competitive the the on the of the its legal and economic order for a of the consumer and for the based on sustainable, inclusive growth and also social of The have no of interest to