Solving a sustainability-deficit in European competition law

Abstract

It is undeniable that there is a tension between European competition law and sustainability focused agreements between undertakings. Whether it should, and how it could, be resolved is less clear. The necessity of providing ‘more room’ for sustainability-focused agreements is contested. Set within the wider discussion on the (proper) goals for European competition law, these public interests are often seen as alien to an economic approach of competition law. By taking developments in the Netherlands, where the tension seems to play out most visibly, as starting point, this article first sets out the argument that there is a sustainability-deficit within current competition law, and delineates where this deficit is ‘located’. The article then provides an overview of possible solutions. These are not (all) immediately applicable but would need tweaking existing competition law’s instruments. Thus both to the interpretation of the Article 101 (3) TFEU exception clause and to the doctrines relating to placing entities or activities outside the scope of Article 101 (1) TFEU are discussed, as is the underlying rationale relating to the dichotomy between market and government.