Competition Law as a Form of Social Regulation

Abstract

For a long time considered a fringe topic, of interest for developing and emergent economies, the question of inequality and poverty has recently taken center stage in mainstream competition law scholarship in the developed countries. Some of this literature deplores the current state of competition law, which has largely ignored this issue, and argues for a different paradigm that would actively engage with economic inequality and its causes. Taking a social contract perspective, and noting the hybrid nature of competition law, which is a tool of economic order, but also a form of social regulation, this study explores the main difficulty in enriching competition law with equity concerns: the economic foundations of mainstream competition law in welfare economics and the crucial separation of the economic efficiency dimension from that of distributive justice. It then examines alternative traditions in economic thought, which are more compatible with an egalitarian perspective. It then turns to the institutional question, exploring the various instruments that governments dispose in order to equalize, and the respective role of more conventional tools against inequality, such as taxation, concluding that the institutional argument against equity concerns in competition law does not stand serious scrutiny. It also critically engages with the argument that there is a trade-off between equality and efficiency, and again concludes that this argument does not stand serious scrutiny. The final part revisits the thorny question of what is to be equalized. Drawing on the idea of “complex equality,” it presents the contours of a fairness-driven competition law.

Competition Law and Sustainability in the EU: Modelling the Perspectives of National Competition Authorities

“…In this regard, capitalism, in a general sense, should metamorphose into moral/conscious/citizen/stakeholder capitalism through ever‐changing societal needs because the careless actions of businesses in perfectly competitive markets could be toxic in the absence of intervention by competition agencies (Meagher 2020; Stucke and Ezrachi 2020). On that note, Lianos (2020) and Schinkel (2022) argue that competition policies should also cover a comprehensive approach to competition that prioritises fairness, aimed at salving distributive injustices.…”

“…Consequently, this article positions itself between natural law and legal positivism by arguing that NCAs should have an exhorting and guiding role so long as they remain loyal to general principles of law by considering abstract ethical values. There is a need to move from a technocratic to a more populist approach, questioning whether it is legitimate for competition law to focus exclusively on economic efficiency (Lianos 2020). Non‐economic factors serving the public interest are now considered frequently due to the existential characteristics of sustainability‐related matters.…”

La libre competencia y la agenda económica del actual gobierno colombiano

“…Puede haber varias respuestas a esta pregunta. La que propone este artículo es que la política de competencia es una herramienta del Estado para cumplir propósitos constitucionales que se reflejan en los objetivos planteados por el gobierno actual: justicia económica, justicia social y justicia ambiental (Lianos, 2020).…”

Reorienting competition law

“…The last fifty years, starting with the Chicago Revolution in the 1970s 12 , erupted a distinct neo-liberal agenda postulating the goal of economic efficiency instead of fair competition, continued with the domination of the consumer welfare consensus, following the post-Chicago reform of the 1990s 13 , and most recently was challenged by the emergence of the anti-bigness agenda of the New-Brandeisians 14 . In my view, these continuous ideological debates over the role and capacity of competition law enforcement institutions to structure a more efficient, resilient and fairer economy, highlight the fact that competition law can be conceived as a tool of economic and social regulation 15 . The way it restricts, enables and structures economic power has profound implications, not only on the economic field, but also on all other interconnected spheres of social action (political, social, cultural) 16 .…”