EU Competition Law and Sustainability: The Need for an Approach Focused on the Objectives of Sustainability Agreements

Abstract

European Union (EU) competition legislation can potentially
contribute to the achievement of sustainability objectives and the battle against
climate change. This article highlights the importance of interpreting the rules of
EU competition law in a way that aligns with the sustainability goals of the EU,
such as the sustainable development goals (SDGs), the EU Green Deal, and related
programs. Although Article 101 TFEU typically prohibits agreements between
rivals, cooperative agreements among market participants with sustainability aims
(known as sustainability agreements) may, under specific circumstances, be
exempted from the cartel prohibition outlined in Article 101(3) TFEU. There has
been a growing demand in recent years to establish clear guidelines for allowing
sustainability agreements under EU competition law, particularly under Article
101(3) TFEU. This has sparked a contentious discussion among scholars, national
competition authorities (NCAs), and the European Commission. This article will
explore an alternative perspective on the evaluation of objectives and measures in
agreements, specifically using the willingness-to-pay method. It will also propose
a broader interpretation of Article 101(3) TFEU, which could facilitate the
implementation of sustainability agreements. The feasibility of such a possibility
will primarily rely on the specific goals outlined in the agreements. This approach
may enable a thorough examination of the purposes of a sustainability agreement
in certain scenarios, by concentrating on agreements that aim to achieve
predetermined objectives based on international or national standards, or specific
policy objectives that were not obligatory for the companies involved beforehand.