Fairness and the Challenge of Making Markets Work Better

Niamh Dunne

doi:10.1111/1468-2230.12579

Abstract

AbstractThis article explores the revival of fairness as the lodestar of EU competition enforcement. It considers the theory and evolving discourse of fairness, then identifies and evaluates examples of fairness‐oriented enforcement activity. Concluding that fairness represents a distinct development from the ‘hipster antitrust’ movement, the article suggests reasons to explain the shift, including a need to rehabilitate the social market economy in an age of market‐scepticism, and to facilitate the progressive expansion of competition law to address modern market failures.

Highlights

This article explores the revival of fairness as the lodestar of European Union (EU) competition enforcement
Moving beyond an account rooted in the inherent appeal of fairness, we offer a tentative explanation which situates it within wider contemporary concerns about the continued existence of the social market economy ideal
The fairness mantra is more than a retreat to past arguments for hyper-aggressive intervention, and its more nuanced nature distinguishes it, conspicuously, from hipster antitrust

Summary

Fairness and the Challenge of Making Markets Work Better

This article explores the revival of fairness as the lodestar of EU competition enforcement. It considers the theory and evolving discourse of fairness, identifies and evaluates examples of fairness-oriented enforcement activity. Concluding that fairness represents a distinct development from the ‘hipster antitrust’ movement, the article suggests reasons to explain the shift, including a need to rehabilitate the social market economy in an age of market-scepticism, and to facilitate the progressive expansion of competition law to address modern market failures

INTRODUCTION

Theories of fairness

The contemporary rhetoric of fairness

Understanding fairness in contemporary EU competition law

Findings

CONCLUSIONS