Chapter XI
In the Quest for Sustainability – How can National Competition Authorities Contribute?
p. 201-224
Résumé
The perspective through which competition law in the European Union is perceived has been changing over the recent several years. The leitmotif of this trend is grouped with the ongoing debate on the goals that competition law may encompass and serve. One of its facets pertains to sustainability. However, it elicits two further doubts. The first regards the meaning of sustainability. To target sustainability values, rules and policies, prior identification of its scope is unquestionably inevitable. To this end, multiple publications1 were delivered and, as it constitutes a separate subject of research, in principle it will not be discussed in this paper. However, the other signalled doubt has to be addressed here – how can sustainability goals (technically) be achieved with or through competition law? Obviously the exhaustive answer would need to be (excessively) extensive in length. Thus, touching upon a piece thereof, this paper will focus on National Competition Authorities (hereinafter: ‘NCAs’) and their capability to join ‘the quest for sustainability’.
Texte intégral
I. Introductory Remarks
1It begins with the general observation that sustainability, environmental protection, fair trade production, and animal welfare2 are rising concerns in EU law.3 This common goal is enshrined in the Treaty on the Functioning of the European Union.4 Article 11 TFEU states that ‘[e]nvironmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’. A similar purpose is visible in the wording of Article 3 (3) TEU.5 One may ask then, why competition law might not foster these goals? The paradox in approaching this question is that, arguably, no one would candidly say that competition law cannot support the wide-ranging efforts in this respect. Therefore emphasis should be placed elsewhere, namely by which means competition law may be deployed, and to what extent this support can be planned, intended and conscious. The accidental inclusions of sustainable development no longer correspond with increasing needs to have a tailored strategy to pursue that goal and become more adaptive to a variety of circumstances across Europe.6 Unfortunately, this may trigger various problems. Competition law in the European Union is far from being a homogeneous construct. Regardless of its components and subbranches, when it comes to its core part, namely antitrust law (restrictions of unilateral and multilateral anticompetitive practices), it can be either EU law, or national law, similarly to an EU dimension case or pure national case, as well as the European Commission’s case or NCA case. The contexts in which a thread of sustainability may emerge are indeed diverse. Any plans or policies associated with sustainability should not ignore that factor. The outstanding thought is that the criterion of the effect on trade dividing the EU antitrust model into two parts is artificial to some extent and, more importantly, does not reflect more targeted demand from this model.7
2Setting aside whether this is an EU or pure domestic case, it should be highlighted that NCAs are often best placed to identify and (efficiently) address sustainability-related instances within more or less intrinsic factual and legal circumstances. It would be difficult to expect the European Commission’s radar to be evenly precise. Not to mention the fact that the Commission does not possess sufficient resources to do so.8 Therefore, in accordance with the principle of subsidiarity, the workflow in this regard should be deferred to NCAs when necessary, irrespectively of the strict disapplication of that principle for the Union’s exclusive competences.
II. Origins of Sustainability in European Antitrust
3The possibility to address non-economic goals and/or non-competition interests in antitrust cases is a concept that did not emerge yesterday. It shall be explained here that, for the sake of this paper, non-economic goals, non-efficiency goals and non-competition interests are treated alike irrespective of possible differentiations in literature.9 At any rate, the powerful doctrine of consumer welfare, which has prevailed in the discussion on competition law, is not entirely devoid of the qualitative merit that is fundamentally desirable to be achieved through motives associated with sustainable development. Unfortunately, the qualitative side functions as a minor factor in practice, although the European Commission generally strives to upgrade such qualitative efficiencies10 in the entire scope. Among the reasons why the quantitative analysis plays a major role in the application of the fundamentals of this doctrine, is – simplifying – a prosaic and practical easiness in comparison to quality aspects that are difficult to grasp and evaluate. In addition to the fact that sustainability appears to be similarly or even more exposed to a potential immeasurability, there is a recurring question – where, above all, is the touchpoint with competition law? To tackle these remarks, a look back may be helpful, but it should be preceded with the rudimentary truth that law is the subject of various external circumstances affecting its content and interpretation. Thereby law is in a constant state of flux, being prone to waves of current priorities, perspectives, and values mirroring the stage of civilisational development. This applies to sustainability in European Union law as well. In spite of the spotted intensity of this process, it has to be recalled that sustainability has been in the Treaties for years. Thus the current wave cannot be deemed a sheer novum, but a logical legal consequence of what Member States agreed upon when establishing the aforementioned Article 11 TFEU. Ongoing debate should not answer the question of whether effective sustainable development shall be ensured through the lens of competition law, but how. Unlike as in older literature,11 there is no need for convincing about integrating competition law and environmental protection law.
4The leading example of a flourishing space for sustainability in European competition law comes from the Netherlands,12 where the first attempts to address sustainability could have been observed.13 Without dissecting the entire sequence of events on the timeline, it can begin with 2014, when the Netherlands Authority for Consumers and Markets (‘ACM’) released a document about the Dutch Competition Act and sustainability, entitled the ‘Vision Document’.14 This aimed, in particular, at guiding undertakings on how to assess the sustainability initiatives using antitrust optics. One of the very first analyses carried out in light of the Vision Document pertained to the ‘Chicken of Tomorrow’ case.15 Its name is derived from existing sustainability arrangements made between manufacturers and retailers about the complete replacement, since 2020, of regularly-produced broiler chicken meat, which was in opposition to the fact that it constituted the standard supermarket product range. In this case, the Dutch NCA did not issue a binding decision but advised the organisers of the arrangements.16 Providing assistance, through the soft enforcement of competition rules, four premises were set before the undertakings to be satisfied in order for the agreement to qualify as compliant with the law: 1) Is there an improvement to the production or distribution process, and/or a promotion of technical or economic progress?; 2) Are consumers allowed a ‘fair share’ of these benefits?; 3) Are the arrangements necessary and proportional?; 4) Is there sufficient residual competition on the market? The crucial hindrance to deem the arrangements lawful was to not generate any net benefits for consumers.
III. Does EU Competition Law Preclude Sustainability Goals?
5The clash with some norms of the EU legal ecosystem appears to be the key factor in the reason why the delivery of sustainability goals is so challenging. The mere fact that they can be accessorily inferred from constitutional environmental rights17 is insufficient and, occasionally, poses a potential contra legem scenario. It is a paradox that fostering sustainability initiatives is hampered by a myriad of objections directed at limiting the extent in which they should be included in the implementation of other European Union policies. The primordial intention was to stymie the deteriorating effects to the environment and animal welfare generated by the enforcement of those fields of law, that by default are not guided by this seminal priority.
6Not far from the justification presented by ACM in the ‘Chicken of Tomorrow’ case, the burden in demonstrating the legitimacy of these practices, owing to the rigour of EU competition law, resonates with the doctrine of consumer welfare, or, more precisely, its qualitative facet. Article 101 (3) TFEU is an exemption clause (Legalausnahme) for multilateral practices, yet it is often impossible to fulfil all of the criteria. Most importantly, the conduct needs to allow consumers a fair share of the resulting benefit. When testing the indicia of the conduct involving sustainability aspects, no shares to consumers could be brought at all, or alternatively they would be attainable in the more or less remote future, however, without any guarantee. Moreover, it is unclear whether the term ‘consumer’ could also mean ‘citizen’, in order to suit the sustainability perspective.18 Another premise requires a contribution to improving the production or distribution of goods, or the promotion of technical or economic progress. Both can be difficult to accomplish. The result of such arrangement can even be contrary, as the implementation of sustainability initiatives may reduce production and may have no connection with technical – not to mention economic – progress. Therefore, a favourable interpretation may unexpectedly slide and generate contra legem concerns. Although this is barely feasible, it cannot be refused a limine, and shall be assessed on a case-by-case basis.
7Insofar as, on the basis of the wording of Article 101 TFUE, slim theoretical rationale for sustainable initiatives can barely be offered, this would be even less possible in terms of Article 102 TFEU. Even the optimistic attitude towards the compatibility of this section of EU competition law with sustainability goals is chiefly conditioned on certain prior modifications of legal acts.19
8In addition to the exemption clause of Article 101 (3) TFEU, other options can be taken into account, although they may be dependent on quite specific circumstances: state action defence, as a service of general economic interest and ancillary restraints.20 From the procedural perspective, individual guidance letters and decisions adopted on the basis of Article 10 of Regulation 1/2003 could be considered.21 The more profound exploration of Articles 101 and 102 TFEU is not the primary goal of this paper. The debate on whether they allow sustainability goals is underway. Given that a positive outcome is uncertain and susceptible to false predictions and many variables, the presentation of an alternative approach does not require further motivation.
VI. (Un)Hidden Solution
9While paragraph 1 of Article 3 of Regulation 1/2003 is seemingly one of the highlighted provisions for the entire decentralised system of competition law, until quite recently, Paragraphs 2 and 3 have apparently been the most underrated provisions of the EU antitrust system, and thus nearly invisible in case law. The decisions of the NCAs involving those legal bases have been seen as bold and risky, owing to the unknown approach that the Court of Justice could take with regard to the scope of these norms and their admissibility in the first place. However, it is nothing new that the ultimate interpretation of various competition norms must await adjudication for its approval or disapproval, notwithstanding the warranted criticism faced by this modus operandi.22 The anticipated reluctance of the steadfast European Commission in respect of the broadening of the NCAs’ competences via these extraordinary legal instruments, can be listed as another underlying factor. The EU competition legal regime is labelled as architecture in which the European Commission is positioned as primus inter pares. This is noticeable in the case of the Commission’s position in the European Competition Network, also when analysing the layout of rights and duties set out in Regulation 1/2003. However, this scheme may be undermined once a Member State lays down lex specialis taking advantage of Paragraphs 2 and 3. The more exemptions (or modifications) affecting lex generalis, the less uniform antitrust is expected throughout Europe.
10Still, when heeding the risks and limits in delivering a new legal framework based on the paragraphs at issue, it must be emphasised that this is the opportunity for sustainability goals, and even for their prevalence over typical competition goals, or at least an alternate manner of reconciling them. Paragraph 3 shall be taken into consideration in particular. In essence, it provides that the application of national law, predominantly pursuing an objective different from those enshrined in Articles 101 and 102 TFEU, is not precluded. Moreover, in such situation, Paragraphs 1 and 2 are not applied. By these means, the obligation to apply Articles 101 and 102 TFEU is no longer valid. Furthermore, the section of Paragraph 3 dedicated to the control of concentration literally refers to NCAs and national courts. There is no reference thereto when it comes to the application of national law predominantly pursuing a different objective. Thus the intervention23 of a different authority and/or court of the Member State may exclude a subsequent antitrust investigation.
11As regards the objectives pursed by Articles 101 and 102 TFEU, they are undoubtedly different from those related to sustainability, animal welfare, and environmental protection. Only recently has the Court delivered seminal judgments in the Nordzucker24 and bpost25 cases, in which it was confirmed that Article 101 TFEU26 is a provision pertaining to a matter of public policy prohibiting cartels and pursuing the objective, essential for the functioning of the internal market, of ensuring that competition on that market is not distorted.27 It can be additionally deduced a fortiori from the preamble’s recital 9 of Regulation 1/2003, which provides for this type of different objective to be pursued,28 that sustainability is even more suitable in this respect.
12Apparently, sustainability goals are predominantly perceived as an additional layer that should possibly be employed in competition law analysis. Perhaps this is the reason why attempts to achieve it have been to no avail. Treating both sets of objectives as separate principles, they should be reconciled to the maximum possible.29 Weighing values and priorities at stake through the lens of the strictness of Articles 101 and 102 TFEU may not have worked out as they are by nature overly distinct. As a matter of fact, Paragraph 3 offers more than just a reconciliation – it allows sustainability to go first with all the attached consequences. Certainly it has to be submitted to a proportionality test at the end of the day, but the employed rule of precedence appears to be clear and out of question. However the proportionality assessment is not entirely the optimal tool struggling with non-efficiencies understood as other than those benefitting consumers.30 Last but not least, bringing the sustainability approach may be beneficial for remediating peculiar domestic concerns, sometimes limited to the territory of one country or its part,31 but actions taken for the sake of environmental protection and animal welfare contribute to global efforts altogether. Thereby, from this atypical angle, competition cases may impact the global economy.32
V. Dispute on Article 3(3) Regulation 1/2003
13It may be startling that a legal tool of such power has been so rarely utilised, arguably due to political motives and tensions between the Union and Member States. Paradoxically, in the considered proposal, the de facto and de iure waiver of EU competition law enforcement, as envisaged in Paragraph 3, could be devised to strengthen another EU priority, i.e. sustainability. In other words, national norms would be applied – instead of EU competition law – in order to permit the implementation of certain arrangements between undertakings. To ‘spice’ this up, it is stated, in the given paragraph, that it cannot be applied with prejudice to general principles and other EU provisions – this is satisfied with interest as it corresponds to the Treaties’ provisions and approach towards sustainability.33 Besides, the mere fact that Article 101 (3) TFEU has been widely seen as a default tool to promote non-competition goals34 is not tantamount to rejecting an alternative concept, whose success would materialise in practice.
14These observations are particularly salient in light of doubts arising as to how exactly Article 3 (3) of Regulation 1/2003 shall be construed. M. M. Delgado and N. Petit, just recently, brought forward their thoughtful insights to pitfalls whilst applying Article 3. They raised that ‘the model of pre-emption’ does not always allow Member States to adopt and apply national rules that predominantly pursue an objective different from Articles 101 and 102 TFEU.35 They endeavour to argue that the paragraph at hand cannot be interpreted in a way that Articles 101 and 102 TFEU would not have to be applied, but refers strictly and exclusively to Paragraphs 1 and 2 of Article 3 Regulation 1/2003.36 This view is not convincing. Just to mention, the mainstay of Paragraph 1 provides an obligation to apply EU competition law (Articles 101 and 102 TFEU) whenever national competition law is applied (in EU dimension cases). Hence the disapplication of Articles 101 and 102 TFUE is a logical consequence of the pre-emption model established in Paragraph 3. Otherwise that model would be pointless. Decoding the intention of the EU lawmaker, that path cannot be accepted. Naturally, it does not constitute an open door for any departures from the EU competition law system, driven by the sole discretion of Member States, and cannot become unrelated to the multi-level governance system of the EU. Then, by the same token, it would also be senseless. Therefore, the EU lawmaker stipulated a prerequisite: ‘[w]ithout prejudice to general principles and other provisions of [EU] law’, that is satisfied in the considered scenario:
- Articles 101 and 102 TFUE are disapplied (Premise no 1);
- It supports the sustainability initiatives covered (in order to protect or attain by Article 4 (2) TFEU, Article 11 TFEU and Article 3 (3) TEU37 (Premise no 2);
- Different objectives are at stake (Premise no 3);
- Neither the principle of primacy (of EU law), nor the principle of sincere cooperation, are compromised38 as: 1) the EU law (competition law and sustainability-related law) does not differentiate the better and worse parts thereof; 2) accomplishment of sustainability goals can be achieved by whatever the direct source of action is, be it Union’s, or national; 3) the principle of sincere cooperation is built on the assumption that both Member States and the European Union take actions to attain the common objectives of the Union, hence the national law prevailing over EU competition law, in order to foster sustainability initiatives that cannot be deemed incompliant therewith (so as to conform to general principles; Premise no 4).
15Agreeing that Paragraph 3 is capable of filtering which national provisions can pre-empt Articles 101 and 102 TFEU, the proposal to let in sustainability rests on solid grounds. Although a dispute over Article 3 is obviously far from being resolved, a moderate and not withdrawn attitude could activate this long-standing, or in fact ‘long-laying’ provision for the sake of competition or other values. It is the ultimate decision of the Court of Justice to steer the workability of each paragraph of Article 3. Just for the record, there was, so far, no ruling that would prohibit the interpretation proposed in this paper, and, as anticipated (or speculated), it will not be changed with the Facebook39 case following the German NCA’s decision,40 given the direction of questions set forth in preliminary request, seemingly conducive to providing – by Advocate General A. Rantos – guidance from the antitrust side merely in footnotes.41 Not to mention that the opinion presented by the Advocate General basically points out the uniform application of the General Data Protection Regulation42 (‘GDPR’), pushing aside the very truth that the lack of application of EU competition law, once it is mandatory, will also affect the uniformity of the application thereof.43 However, any references to the Facebook case should be limited since, surprisingly, the Bundeskartellamt’s decision does not contain any legal basis for that departure from the EU competition legal regime (de lege ferenda, it shall be obligatory). Hence it is basically unknown whether the German NCA had in mind Article 3 (2) or (3) Regulation 1/2003. Perhaps this was even intentionally missed. In any event, unlike the GDPR’s objectives, sustainable development is a matrix for the horizontal actions of the Union and Member States. In other words, sustainability remains intertwined with all of their other policies, including antitrust, which cannot be conclusively prescribed with regard to the ambit of the GDPR.
16To further enhance the reasoning offered, it shall be recalled that state action defence doctrine is likewise based on the coercion of national peculiar law (or its enforcement), and is generally capable of justifying omittances of or violations to EU antitrust rules. Thus the solution in question would not be incoherent with the current logic of the EU competition law system. The setting, pursuant to which EU competition rules are designed ‘for the functioning of the internal market’ (pursuant to Article 3 (1) b TFEU) belongs to the area of the Union’s exclusive competences, does not collide with the application of national provisions serving objectives other than the functioning of the internal market, especially as sustainability is the EU’s goal as well. What is more, it is supposed to be a manifestation of the principle of loyalty in the NCA’s action that pursues the EU’s objective of promoting sustainability.44 Albeit, however, it cannot be left with any coordination, oversight or control, possibly by hands of the Court of Justice, it should not amount to an a priori proscribed application of Article 3 (3) Regulation 1/2003, prioritising the application of Article 101 or 102 TFEU. In the same vein, any concerns about the independence of NCAs, which were markedly proliferated owing to the advent of Directive ECN+,45 along with relevant literature,46 cannot be misused and surmised convincing to narrow the NCAs’ competences.
VI. Revised Horizontal Block Exemption Regulations and Guidelines
17In line with the European Green Deal as a priority of the Commission, and the growing demand to address sustainability issues in EU competition law in a clear manner, the revised horizontal block exemption regulations and guidelines will likely somewhat refer thereto.47 As regards these regulations, it should first be noted that the current Research & Development Block Exemption Regulation48 (‘R&D BER’) and the Specialisation Agreement Regulation49 was set to be in force until 30 June 2023, as their expiry was postponed.50 Nonetheless their successors will not have any direct connections to sustainability.51 Unlike the draft of the R&D BER, Guidelines on the Applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements expressis verbis refer to Sustainability Agreements for which a separate chapter (9) was dedicated. The primary finding is that the economic operators or consumers do not sufficiently take into account the individual production and consumption decisions that may result in negative effects on the environment. The remediation measures against such market failures can be processed, in particular, through public policies, sector-specific regulations, and, most importantly for our considerations, cooperation agreements between undertakings (para 542). To counterbalance this favourable takeaway, para 548 precisely provides that agreements restricting competition cannot escape the prohibition of Article 101 (1) for the sole reason that they are necessary in the pursuit of a sustainability objective. Against this backdrop another sentence in that paragraph accentuates even more that no extraordinary exemption from Article 101 (1) TFEU is about to be launched via this act of soft law, as the ancillary character of the restrictions to a sustainability agreement cannot lead to incompliance with Article 101 (1) TFEU either. This last sentence seemingly acts as a definitive refusal for such interpretation.
18Under such circumstances, the big question is whether the guidelines offer whatsoever means to support the sustainability approach in EU competition law. The determination or mention of the admissibility of practices fostering sustainable development may not produce any added value. What can be deemed a more productive example from the guidelines is the statement that an agreement presented as pursuing sustainability objectives may be classified not by the object restriction of competition but by the effects. It may pave the way to declaring that the agreement lawfully provided that an analysis of effects would lead to such conclusion. If it is affirmative that the conduct is not aimed at hindering competition, it would be useful to rule out whether the ‘sustainability standardisation agreement’ is at stake. This distinguished concept is defined as specifying the requirements that producers, traders, manufacturers, retailers, or service providers in a supply chain may have to meet in relation to a possibly wide range of sustainability metrics, such as the environmental impacts of production (para 562). By means of incorporation of this new definition, it is possible to bring it closer to the well-known standardisation agreements and technicalities associated therewith. Nonetheless, such an approach to the architecture of EU competition law does not dispose of reflections of the consumer welfare doctrine and its excrescence of qualitative analysis whilst it was recommended52 to reorient therefrom.
19There are multiple instantiations in the guidelines that portray when sustainable development optics would justifiably occur. It is not the intention to go through all of them, nor other informative parts of the guidelines. They deserve a separate special focus in order to glean pertinent observations and undergo evaluation. Hence a glimpse of this draft act should suffice for the time being. Nevertheless that act would be taken into consideration by NCAs, which matters when it comes to what this paper is striving to address. In consequence, it should be acknowledged that the guidelines introduce a limited capacity for the enforcement of EU competition law without prejudice to sustainable development. This mainly rests with the European Commission, which will warmly welcome the final version of the act. As usual, more doubts will accompany the interventions of NCAs.
20It may be too early to jump into the assessment of the realm of sustainability under the modernised guidelines but, some unenthusiastic voices can already be heard. E. Loozen expressed her dissatisfaction in the following catchy and adroit way: ‘[p]roclaiming that vigorous enforcement based on a consumer welfare standard remains at the heart of antitrust, it contends that antitrust can also turn green’.53 In order to prevent the fossilisation of the EU competition system, tough decisions may be necessary. The unsurprising truth is that nursing variations of methods to mould the application of Article 101 (3) TFEU may not viably ensure the pursuit of sustainability objectives. Even assuming that flexibility of interpretation of Article 101 (3) TFEU could be narrower or broader,54 the guidelines do not offer an ultimate sustainability-minded navigation. To simplify, the internal contradiction of that idea is that the quantitative prism predominates antitrust, while this is quite contrary in case (nature) of sustainable development, environmental protection, etc. At times this ‘refurbished’ method may work out but, frankly speaking, the actual examples requiring protection under the umbrella of sustainability will be likely pass through the eye of a needle to be considered lawful, so the dynamics of the change will be unsatisfactory or even difficult to capture.55
21Last but not least, it does not need to be specially reiterated that the guidelines do not cover any justifying clauses with regard to Article 102 TFEU. Given that even multilateral practices are not resistant to clear assessment carried out through an effects-based prism, a justification for the dominant conduct on the grounds of ‘objective necessity’ and similar reasons are not options. That is why an outreach of Article 3 (3), as explicated above, is much broader and hence universal as a beneficial and effective tool in terms of sustainability. Besides, sticking to such solution means bypassing the highly theoretical discussion on amendments to the Treaties so as to introduce sustainable ideas to the antitrust ground. This discussion could be considered only if whatsoever softer measures were to be unsuccessful.
VII. EU and Pure Dimension Cases
22The above considerations have brought us in a natural manner to another issue requiring proper examination. Finding the antitrust case as a purely domestic one or satisfying the effect of the trade criterion is a factor that may change greatly with regard to already discussed ideas and solutions. Those cases in which NCAs are obliged to enforce only national competition provisions (on the basis of national law) are not, to any extent, embraced by Regulation 1/2003 (providing that they correctly assessed that an alleged misconduct did not affect trade between Member States56). In such case they are not constrained in terms of pushing their own policies for sustainability. They may do so via incorporated elements of national competition law, having circumscribed beforehand when and to what degree an ‘alleviated’ enforcement of competition law is expected. Any decisions adopted would lie outside of the jurisdiction of the Court of Justice as well. This is also the easiest way to attempt experimentalist competition law57 in the context of embedding sustainability goals. This time, however, it could go deeper than a mere market regulation, but would aim at adding to the attainment of other non-competition goals. In reference to C. Townley,58 coordinated diversity may produce beneficial results and the NCAs would delight in having more independence from the Commission.
23To maintain the order of how the emergent issues in the paper are discussed, it should be pointed out that Article 3 (3) of Regulation 1/2003 enables NCAs to choose a different path than that imposed by Articles 101 and 102 TFEU. This opens up a range of opportunities for the application of domestic legal concepts designed to meet different objectives in EU dimension cases. As can take place in an EU dimension case due to Article 3 (3), it is similar when a pure national case is on the table. To summarise, NCAs can be vested with competences to enforce their own national norms principally dealing with other objectives.
24The primary condition for applying Article 3 (3) of Regulation 1/2003 is to recognise the different objectives set out in national law and EU competition law. Given that the latter will no longer be free of reference to sustainability due to its inclusion in guidelines in spe, it should be ascertained whether it will still be possible to adopt national measures in this respect. To address this doubt, two aspects have to be taken into account: 1) as Regulation 1/2003 mentions about objectives that are ‘predominantly different’, can sustainability described in the guidelines be considered as one of the objectives of EU competition law, or should it rather be qualified as just one of the factors that can be additionally taken into consideration in the course of examining a concrete case? Or perhaps this should be understood as being but a mere acknowledgement that EU competition rules do not stand in opposition to sustainable development, as such, assessing that the actual feasibility to enforce sustainability goals in antitrust proceedings is not probable due to the very strict criteria needing to be met, would it be a sufficient rationale for Member States to promote more efficient instruments to this end, even to a potential and proportionate prejudice to EU antitrust regime?
25The ultimate answers to these questions will be provided along with decisions and judgements while encountering such issues. For the time being only some predictions can be offered that, naturally, cannot bring certainty to this dilemma. First, it should be stressed that sustainability will not have the capability of becoming a seminal value in this respect, such as, for instance, workable competition. It will rather not be considered the fully-fledged objective that EU competition law will, by default, strive to achieve in every case. It can be recognised as a possible future goal for EU antitrust, but not under the current circumstances.59 We may assume that, once some touchpoints with sustainable development are established, they may serve to exempt from the restrictions laid down in Article 101 TFEU if all (strict) premises are fulfilled. Since Article 102 TFEU appears not to systemically cover any sustainability aspects, it should not be deduced that sustainability is one of the objectives for EU antitrust. Therefore, the position of sustainable development has not changed much together with the advent of the guidelines at issue. Incidentally, if the issue were contrary, sustainability could have been addressed properly in secondary law but it was not. This also means that a contention that national norms, by virtue of Article 3 (3) Regulation 1/2003, were authorised to prevail over Articles 101 and 102 TFEU when it comes to sustainability, is still valid.
VIII. Conclusions
26Injecting more flexibility to competition law in order to enable (or at least not dissuade) entering into a cooperation benefitting sustainability, environmental protection and animal welfare is a goal shared by many of us. Along with other currently salient goals, sustainability is expected to pass more decisively into discourse in the possibly near future.60 And, as such, it may infuse the ongoing exchange of views with optimism. Notwithstanding the very rare anticompetitive practices that may merely emulate a promotion of sustainable development,61 it is worth the effort. This is the success that we crave for living and future generations. The anxiety of green washing should not be treated as a pretext to remain within the severe and narrow scope of Article 101 (3) TFEU. As different research62 has demonstrated, NCAs strive to embed sustainability in EU competition rules even when it causes divergence with regard to the application of substantive law.
27In order to address the most entrenched misgivings resulting from the perspective of legalism, a utilisation of Article 3 (3) of Regulation of 1/2003 was recommended. Irrespective of opposing alternate interpretations and the generally contentious nature thereof,63 it has been maintained that this provision can equip EU Member States with an effective instrument to bring about sustainability achievements within control of the antitrust. This is seemingly a necessity given that revisited guidelines do not yield particularly helpful tools. NCAs should be able to invoke this provision of Regulation 1/2003 to let the national targeted law go, not only in purely national cases, which is obvious, but also in EU dimension cases. However, there must be a firmly established rationale to apply national norms instead of EU competition law. Therefore, sustainability gains shall be verified and undergo the proportionality test, and may only be carried out by the Court of Justice.
Notes de bas de page
1 See: A. Gerbrandy, The Uneasy Relationship between Sustainability and Competition Law (Hart Publishing, Oxford, 2021); E. Loozen, ‘EU antitrust in support of the Green Deal: Why good is not good enough’ (2022) 21 Amsterdam Law School, April 2022, Research Paper 26; M. Iacovides and C. Vrettos, ‘Falling Through the Cracks no More? Article 102 TFEU and Sustainability – the Relation Between Dominance, Environmental Degradation, and Social Injustice’ (2022) 10(1) Journal of Antitrust Enforcement, 32–62.
2 For sake of this paper, ‘sustainability’ covers mainly protection of the environment and biodiversity, fair trade production and animal welfare. Nonetheless it is a sheer simplification as societal functions can also be identified, such as by K. Helming, P. Tabbush and M. Perez-Soba, ‘Introduction’ in K. Helming, P. Tabbush and M. Perez-Soba (eds), Sustainability Impact Assessment of Land Use Changes (Berlin, Springer, 2008); the UN has even broader optics in defining sustainability goals, see: www.un.org/sustainabledevelopment/sustainable-development-goals/. On a very general level, sustainability includes common, tangible and intangible, goods that our civilisation is determined to preserve or restore (basically without the criterion of nationality).
3 In the same vein, climate change concern could be considered altogether – see also S. Holmes, D. Middelschulte and M. Snoep (eds), Competition Law, Climate Change and Environmental Sustainability (Paris, Concurrences, 2021).
4 Consolidated version of the Treaty on the Functioning of the European Union [2010] OJ C326, 47–390.
5 Consolidated Version of the of the Treaty on European Union [2012] OJ C 326/13.
6 Similar conclusions but in a broader context were drawn by H. First and S. W. Waller, ‘Bespoke Antitrust’ (2023) 4-5 NYU Law and Economics Research Paper 22–15.
7 K. Dobosz, ‘National competition law – time to say goodbye?’ (2022) 27 Jean Monnet Network on EU Law Enforcement Working Paper Series: https://jmn-eulen.nl/wp-content/uploads/sites/575/2022/05/WP-Series-No.-27-22-National-competition-law-–-time-to-say-goodbye-Dobosz.pdf.
8 An outlier question or even hypothesis is that the European Commission may not be capable of dealing with many non-economic objectives tied with antitrust instances (perhaps other than those involving new technologies) and thus only NCAs would be eager to undertake them, solving particular domestic social and economic issues altogether.
9 O. Brook, Non-Competition Interests in EU Antitrust Law: An Empirical Study of Article 101 TFEU (Cambridge, Cambridge University Press, 2022); F. Kieran, ‘A Separation of Powers Approach to Non-efficiency Goals in EU Competition Law’ (2013) 1 European Public Law 19; K. Dobosz, Jednolitość stosowania prawa konkurencji Unii Europejskiej przez organy i sądy Państw Członkowskich (Warszawa, Wolters Kluwer, 2018) 292–302; C. Semmelmann, ‘Non-competition goals in the interpretation of Article 81 EC’ (2008) 1 Global Antitrust Review 15–47.
10 See an example of replacing a non-sustainable product with a sustainable one, Competition policy brief: https://op.europa.eu/en/publication-detail/-/publication/63c4944f-1698-11ec-b4fe-01aa75ed71a1.
11 S. Kingston, ‘Integrating environmental protection and EU competition law: why competition isn’t special’ (2010) 16(6) European Law Journal 780–804.
12 See A. Gerbrandy, ‘The Uneasy Relationship’ (n 1 above); additionally, a well-known case of dairy farmers who attempted to preserve the black tailed godwit can be mentioned as one of the very first stories with competition and sustainability in the plot.
13 It should be noted that, in other Member States, interests in this direction have evolved. From a subjective point of view, France and Greece have joined their Dutch colleagues in efforts to foster sustainable development. The perspective of selected countries is further discussed here: J. Malinauskaite, ‘Competition Law and Sustainability: EU and National Perspectives’ (2022) 13(5) Journal of European Competition Law & Practice 343–48.
14 www.acm.nl/sites/default/files/old_publication/publicaties/13077_vision-document-competition-and-sustainability-2014-05-09.pdf.
15 For further information on the sustainability arrangements and approach undertaken hereto, see: www.acm.nl/sites/default/files/old_publication/publicaties/13789_analysis-chicken-of-tomorrow-acm-2015-01-26.pdf.
16 However, this cannot be inferred to be recognised as a form of comfort letter.
17 With regard to those Member States whose constitutions have stipulated the protection of these goals – S. Kingston, ‘The uneasy relationship between EU environmental and economic policies. The role of the Court of Justice’ in B. Sjåfjell and A. Wiesbrock (eds), Sustainable Public Procurement under EU Law. New Perspectives on the State as Stakeholder (Cambridge, Cambridge University Press, 2015) 25 ff.
18 J. Nowag, ‘Competition Law’s Sustainability Gap? Tools For An Examination And A Brief Overview’ (2022) 1 Nordic Journal of European Law 158.
19 V. Mauboussin, ‘Environmental defences as a shield from Article 102 TFEU’ (2022) 3 Concurrences 39–40.
20 K. Kowalik-Bańczyk, ‘Wprowadzenie Gościa Honorowego’ (2021) 10(3) internetowy Kwartalnik Antymonopolowy i Regulacyjny 8–9.
21 Competition policy brief (n 10 above), 6.
22 R. Chopra and L. M. Khan, ‘The Case for “Unfair Methods of Competition” Rulemaking’ (2020) 2 University of Chicago Law Review 87.
23 Hypothetically an ex lege option might be also possible.
24 Case C-151/20, Bundeswettbewerbsbehörde v Nordzucker AG, Südzucker AG, Agrana Zucker GmbH, ECLI:EU:C:2022:203.
25 Case C-117/20, bpost SA v Autorité belge de la concurrence, ECLI:EU:C:2022:202.
26 The same optics should be possible with regard to the prohibition of abuse of dominance.
27 For further remarks on this issue see: K. Dobosz, ‘The Housekeeping of the Court of Justice: the ne bis in idem Principle and the Territorial Scope of NCA Decisions, Case Comment to the Nordzucker Judgment of the Court of Justice of 22 March 2022, Case C-151/20’ [2022], 26 Yearbook of Antitrust and Regulatory Studies 15, passim.
28 It pertains to national provisions prohibiting undertakings from imposing on their trading partners, obtaining or attempting to obtain from them, terms and conditions that are unjustified, disproportionate or without consideration.
29 It is not any different in the case of touchpoints between sustainability and other fields of EU law – see J. Nowag, Environmental integration in competition and free-movement laws (Oxford, Oxford University Press, 2016).
30 M. Hjärtström and J. Nowag, ‘General principles of EU law in EU antitrust; for general role of environmental requirements’ in K. S. Ziegler et al. (eds), Research Handbook on General Principles of EU Law (Cheltenham, UK, Edward Elgar 2022), passim.
31 What perfectly responds to the research suggesting that ‘competition culture’ is permeated by domestic relevant factors – A. Foer, ‘Competition Culture and the Cultural Dimensions of Competition’ in D. Gerard, I. Lianos (eds), Reconciling Efficiency and Equity: A Global Challenge for Competition Policy (Cambridge, Cambridge University Press, 2019) 295–311.
32 What is in line with the pattern described by R. D. Anderson, W. E. Kovacic, A. C. Muller, A. Salgueiro and N. Sporysheva, ‘Competition Policy and the Global Economy: Current Developments and Issues for Reflection’, 88 The George Washington Law Review 1421–76.
33 It also evinces some similarities with reasoning by way of constitutional approaches that A. Gerbrandy listed among options to justify sustainability initiatives – A. Gerbrandy, ‘The Difficulty of Conversations about Sustainability and European Competition Law’ (2020), 6 Competition Policy International Antitrust Chronicle.
34 Compare: O. Brook, ‘Priority Setting as A Double-Edged Sword: How Modernization Strengthened the Role of Public Policy’ (2020) 4 Journal of Competition Law & Economics.
35 M. Mota Delgado and N. Petit, ‘Article 3 of Regulation 1/2003 and the Doctrine of Pre-Emption’ in A. Claici, A. Komninos and D. Waelbroeck (eds), The Transformation of EU Competition Law – Next Generation Issues (Alphen aan den Rijn, Wolters Kluwer, 2023) 16: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4325094.
36 Ibid.
37 Compare with Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements, para 542.
38 Relying on both principles, Mota Delgado and Petit have built their argumentation heeding the limited scope of para 3, Idem 16 and 17.
39 Case C-252/21, Facebook Inc. (currently Meta Platforms Inc.) and Others v Bundeskartellamt, ECLI:EU:C:2023:537.
40 FCO, Decision of 6 February 2019, B6-22/16 (Facebook Decision): https://www.bundeskartellamt.de/SharedDocs/Entscheidung/DE/Entscheidungen/Missbrauchsaufsicht/2019/B6-22-16.pdf?__blob=publicationFile&v=8.
41 Opinion of Advocate General Rantos in case C-252/21, Facebook Inc. (currently Meta Platforms Inc.) and Others v Bundeskartellamt, ECLI:EU:C:2022:704, para 18 ff.
42 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L119, 1–88.
43 K. Dobosz, ‘Jednolitość stosowania’ (n 9 above).
44 Per analogiam, opinion of Advocate General Rantos (n 41 above), para 28.
45 Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market [2019] OJ L11, 3–33.
46 See eg: M. Bernatt, Populism and Antitrust. The Illiberal Influence of Populist Government on the Competition Law System (Cambridge, Cambridge University Press, 2022), passim; S. Alves, J. Capiau and A. Sinclair, ‘Principles for the Independence of Competition Authorities’ (2015) 1 Competition Law International 11; W. P. J. Wils, ‘Independence of Competition Authorities: The Example of the EU and Its Member States’ (2019) 42 World Competition 2 149–69; A. Piszcz and C. Grynfogel, ‘Overview of Compliance with the Requirements of Directive (EU) 2019/1 with Regard to the Independence and Resources of National Competition Authorities: The Examples of France and Poland’ (2022) 53 International Review of Intellectual Property and Competition Law 1071–102.
47 Additionally, as regards Common Agricultural Policy, the Commission has just recently drafted Guidelines for sustainability agreements in agriculture – https://ec.europa.eu/commission/presscorner/detail/en/ip_23_102.
48 Commission Regulation No 1217/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the functioning of the European Union to categories of research and development agreements [2010] OJ L335, 36.
49 Commission Regulation No 1218/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty to categories of specialisation agreements [2010] OJ L335, 43.
50 Respectively by Commission Regulation (EU) 2022/2455 of 8 December 2022 amending Regulation (EU) No 1217/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements [2022] OJ L321, 1–2 and Commission Regulation (EU) 2022/2456 of 8 December 2022 amending Regulation (EU) No 1218/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreements [2022] OJ L321, 3–4.
52 M. Iacovides and C. Vrettos, ‘Falling Through the Cracks’ (n 1 above) 54.
53 E. Loozen, ‘EU antitrust in support’ (n 1 above) 26.
54 O. Andriychuk, ‘The Concept of Sustainability in EU Competition Law: A Legal Realist Perspective’ (2021) 23 Yearbook of Antitrust and Regulatory Studies 14 29–34.
55 A misuse of this may be seen when some loud initiatives, involving significant undertakings, to promote sustainability, would take place but their only goal would be their own promotion.
56 This condition was not always fulfilled – see especially: M. Botta, A. Svetlicinii and M. Bernatt, ‘The Assessment of the Effect on Trade by the National Competition Authorities of the “New” Member States: Another Legal Partition of the Internal Market?’ (2015) 5 CML Rev, 1247–76; J. Malinauskaite, ‘Public EU competition law enforcement in small “newer” Member States: addressing the challenges’ (2016) 1 Competition Law Review; M. Bernatt, ‘Stosowanie reguł konkurencji UE przez polski, czeski i słowacki organ ochrony konkurencji’ in T. Skoczny (ed), Prawo konkurencji. 25 lat (Warszawa, Wolters Kluwer 2016), K. Dobosz, ‘Jednolitość stosowania’ (n 9 above).
57 Y. Svetiev, Experimentalist Competition Law and the Regulation of Markets (London, Hart Publishing, 2020).
58 C. Townley, A framework for European competition law: co-ordinated diversity (Oxford, Hart Publishing, 2018) 533. Besides, the Author discusses sustainability on the example of ACM within the first chapters of the book.
59 M. K. Derdak, ‘Square Peg in a Round Hole? Sustainability as an Aim of Antitrust Law’ (2021) 14(23) Yearbook of Antitrust and Regulatory Studies 62.
60 K. Stylianou and M. Iacovides, ‘The goals of EU competition law: a comprehensive empirical investigation’ (2020) 42(4) Legal Studies 647.
61 Such as in case C-563/19 P, Recylex SA and Others v European Commission, ECLI:EU:C:2021:428.
62 O. Brook, ‘Struggling with Article 101(3) TFEU: Diverging approaches of the Commission, EU Courts and five competition authorities’, 36: https://eprints.whiterose.ac.uk/141418/1/Struggling%20with%20Article%20101(3)%20TFEU%20-%20SSRN%20version.pdf.
63 W. P. J. Wils, ‘The Obligation for the Competition Authorities of the EU Member States to Apply EU Antitrust Law and the Facebook Decision of the Bundeskartellamt’ (2019) 3 Concurrences12: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3424592.
Auteur
-
Kamil Dobosz
PhD, Department of Regulatory Policies, University of Economics, Cracow, Poland
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