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

Abstract

Debates have surged in the EU on how EU competition policy can best support the European Green Deal. In the theoretical and practical scopes, non-economic factors in competition law analysis are problematic due to the difficulty in measuring the concrete benefits of trade-offs. The National Competition Authorities (NCAs) rather than the European Commission (EC) are leading the 'sustainability in competition law' debates, which is the focus of this paper. Therefore, this study reviews the current status quo of all NCAs' positions concerning sustainability-related matters by classifying them into four typologies in terms of their willingness to incorporate sustainability in their assessments. It further identifies four emerging NCAs models which seem to divert from the EC's view.This can be problematic in ensuring the uniform application of competition law. IntroductionSustainability is at the heart of the European Union (EU) with its pressing challenges to decouple economic development from environmental degradation. In light of the European Green Deal (EGD), which is a long-term plan to make Europe the first climate-neutral continent by 2050, inter alia, Commissioner Vestager (2020) noted that "the time has come to launch a European debate on how EU competition policy can best support the Green Deal". Indeed, the European Commission (EC) signals its intention towards more sustainability-friendly competition practices (European Economic and Social Committee, 2022; European Commission, 2022a) by committing to providing concrete examples of how sustainability objectives can be pursued by different types of cooperation agreements (i.e. joint production/purchasing agreements, standard setting etc.) without restricting competition. The EC in its long-awaited Draft Horizontal Cooperation Agreements Guidelines (Draft Guidelines) incorporated a new chapter on how to self-assess sustainability agreements (European Commission, 2022b). Apart from these draft guidelines and draft of the revised R&D and Specialisation Block Exemption Regulations (known as 'HBERs') (European Commission, 2022c), the EC is not leading this debate, most likely due to limited cases in this field. Instead, the National Competition Authorities (NCAs) have taken a lead for some time now, which is the focus of this paper.

Sustainability agreements in agriculture : Horizontal and vertical agreements in agriculture for the benefit of nature, the environment, the climate, animal welfare and the earning capacity of farmers

“…As a rule, consumers are not willing to do this and sustainability agreements are therefore not easy to achieve. Moreover, non-economic factors are difficult to qualify in terms of benefits (Malinauskaite & Buğra Erdem, 2023). Recently, the EC has been pushing for space to include collective benefits (EC, 2022g, 2023.…”

“…In doing so, however, there have been wide differences in approach, ranging from national guidance documents to, among other things, room for experimentation and statutory regulations. The Dutch ACM had a pioneering role (Malinauskaite & Buğra Erdem, 2023). With the European Green Deal, the EU position started to shift (EC, 2019(EC, , 2020cBadea et al, 2021).…”

“…For a detailed analysis of the tension between classical and modern "green" interpretations of EU competition law, see Inderst (2022) and Malinauskaite & Buğra Erdem (2023).…”

“…The position of national competition authorities in EU Member States as regards sustainability (copied from Malinauskaite & Buğra Erdem, 2023).…”

Duurzaamheidsafspraken in de landbouw : Horizontale en verticale overeenkomsten in de landbouw ten behoeve van natuur, milieu, klimaat, dierenwelzijn en het verdienvermogen van de agrarisch ondernemer

“…In de regel zijn consumenten hiertoe niet bereid en duurzaamheidsafspraken zijn daarmee niet eenvoudig te realiseren. Bovendien zijn niet-economische factoren moeilijk te kwalificeren qua voordelen (Malinauskaite & Buğra Erdem, 2023). Sinds kort stuurt de EC aan op ruimte om collectieve voordelen alsnog mee te wegen (EC, 2022g, 2023.…”