Feminist Competition Law – an interview with Prof. Kati Cseres

By Anna Ferrari

Kati Cseres is an Associate Professor of Law at the Amsterdam Centre for European Law and Governance (ACELG) and Program Director of the EU Law Masters at the University of Amsterdam. At the beginning of 2024, she published a working paper titled ‘Feminist Competition Law’ which seeks to show what a feminist approach to competition law and policy is, and what its contribution can be to the scholarship of competition law.

During the last Florence Competition Autumn School (FCAS) 2024, organised by the Centre for a Digital Society at the EUI, in addition to a lecture about Competition Authorities‘ Enforcement Powers for Setting Priorities, she gave a speech on her new line of research. It was the first time this topic was introduced to the FCAS.
 

What do you want to stress by titling your paper ‘Feminist Competition Law’ and not ‘gender-inclusive competition law’ or ‘gender equality’?

Gender as a perspective in competition law analysis questions how competition authorities should be more aware of the gender perspective. Gender equality is embedded in the EU law system because it is part of the EU Treaty. Feminism is a very broad, diverse, and multidisciplinary stream, with different schools, but essentially it puts the interests of women at the center of the analysis and asks the ’woman question’. It doesn’t seek just ‘equality’ in the sense that women should be in the same situation as men, but rather that sometimes they should be in a different position because that brings them to the real level of equality.

Taking a feminist perspective on competition law was useful to me to raise the question of how the law, institutions or law enforcement took the perspective of women into account, and their implications. It’s a way to deepen our knowledge of what competition law and the work of competition authorities are for. By engaging in a feminist approach, we might open the competition law field for people who work in women’s rights, or other disciplines and discover interesting intersections.

In your paper, you claim that feminist scholars have not explored the area of competition law before. Why do you think it is so?

There might be several reasons. First, except for people in discrimination law and equality law, I think overall few legal scholars worked on gender.

Then, from the feminist perspective, much focus was on what doesn’t fit competition law, what is not in the market and outside the so-called ‘economy’: typically, the second economy: the care economy. Another reason has to do with jurisdictions.

Indirectly, I think relevant knowledge on human diversity has been created by feminist economists who have worked on criticising the basic concepts that we use in competition law, such as the consumer as a homogeneous mass, the homo oeconomicus without any personal identity: no race, no gender, no preferences.

Couldn’t we call you one of the first feminist scholars to tackle competition law?

(Laughs) If you ask me if I am a feminist, there is a story behind it. I started a conversation, first on social media and then by email, with a male colleague about which voices can be heard in the competition law community. Finally, he wrote back: ‘I didn’t know you were a feminist’. I replied: ‘I didn’t know it either’. Suddenly, I realised that indeed I might have a story. It was not a conscious preparation for years to write this paper.

You wrote that “feminist methodologies disrupt the positive claims of objectivity and neutrality”. However, many people, even in academia, still call feminism ‘propaganda’ or ‘ideology’, versus some kind of normalcy, supposedly called ‘neutrality’. But isn’t this ‘neutral’ concept, once again, an expression of being blinded by privilege?

Yes. What people may call ‘mainstream’ or ‘neutral’ is equally not true because they also have taken certain values, like the free market and market mechanisms above all, like a certain school of thinking. You should push back when they tell you this. Nothing is ‘neutral’ because competition is always part of a political and legal system. Economics is not neutral, either. Who said that the type of economics used in the EU or elsewhere is neutral? The problem is that nobody has questioned it.

At the end of 2023, an editorial on ‘Gender Misconduct in Academia’ was published in the Journal of European Competition Law & Practice, regarding women in academia and competition law who experienced marginalization, and worse. What other initiatives could help open such conversations?

Apparently, that editorial meant a lot to many women, so I think it was good that it came out.

At the University of Amsterdam, we organise the ‘Women in Law’ talk series. I realised that many of our students in the competition and regulation programme only see men teaching – and it’s a great team! – but they don’t see other role models.

So, we invited young women who are practising lawyers, or from academia, or other careers, and also not from a Western background.

Another initiative: our Diversity Committee organises lunches and sometimes a few guys join. It’s refreshing because changes are not going to happen if discussed by women only. You need men to join the conversation.

In your paper, you suggest that the role of National Competition Authorities (NCAs) could be important for the feminist competition law approach. How?

If you focus on female consumers or on firms that are female owned, that changes the analytical framework of competition law. When the relevant market is defined, then we look at consumer preferences and consumer decisions, and we disaggregate the data along gender lines. Some economists conducted empirical research and found cases where disaggregating was relevant because consumers made different decisions according to their gender. The definition of market power has important implications.

Do you have additional examples of good practices for NCAs?

First, the Commission published its revised Market Definition Notice for competition cases, which implements the developments of the past 20 years, and for example when we look at consumer preferences and switching behaviours, language, culture, and other parameters need to be looked at. I think gender could be one of those parameters for NCAs to consider. In addition, NCAs often have their guidelines or notices on market definition. Then, market power in the digital field might be influenced by gender, like in the case of algorithms reflecting or worsening gender biases. In the field of competition law, for example, women may not receive certain relevant information, like car advertising, because the stereotypical target audience is men. Research shows, however, that most purchasing decisions are taken by women. So, you could say they may suffer an information disadvantage in their purchase decisions, entrenching the market power of certain companies. Another perspective could probably be NCAs becoming more active on market power in labour markets because there is already solid research on gender pay gap. Then, there is the OECD Gender Inclusive Competition Toolkit (2023): I contacted NCAs to know if they were actively addressing it, but the only country in the EU I know of at this stage is Austria.

Above all, you argue in favor of priority setting for NCAs. Why?

Priority setting doesn’t require extra resources for NCAs or the change of their legal mandate. NCAs might start prioritising cases relevant to women or other vulnerable groups. You see, feminism is about one specific vulnerable group in society- women- but the arguments could be valid for other vulnerable subgroups of society, such as the LGBTQI+ community, racial minorities, or poor people. For me, feminism is a broader way to think of inclusion/exclusion and inequalities.

There are jurisdictions, like the UK, the Netherlands, and a few others, where this is already happening: they are switching from the consumer welfare standard because their governments have a broader welfare policy that occasionally will also look at subgroups of consumers, like vulnerable citizens.

The bright side is that NCAs have large discretion in priority setting. The downside is that it depends on each jurisdiction, and it is not mandatory. Priority setting might need awareness raising and, certainly, further work.

Is there something important we didn’t cover in this interview?

Let’s keep checking, first, if women are part of the decision-making process, because we must start by adding women. Second, the diversity in such voices, considering different geographical regions, or ethnic backgrounds, brings a different sensitivity. I’m sensitive about which women are invited to conferences, discussions, and book presentations in competition law. Usually, the same women are invited again and again. Instead, I would like more inclusiveness: a woman from Southern Europe, another from Eastern Europe, etc. This links us up to your first question because that’s exactly the difference between gender equality and feminism. It’s not about just adding women, but adding that different perspective and those different voices and making decisions.