INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW The debate so far concentrates on the question as to whether and how environmental protection considerations can justify a potential restriction of competition. Technically speaking, and only from an EU law point of view, the debate is mostly, albeit not exclusively, framed in terms of efficiencies: if an agreement falls within the scope of Article 101 (1) TFEU, can it be exempted on sustainability grounds based on Article 101 (3) TFEU? There is a de facto consensus today that the answer to the question is affirmative. Since long ago, non-competition considerations have been considered in the efficiency assessment, such as employment, health, consumer protection, industrial policy, or innovation for example. The most recent overview of the debate can be found in a comprehensive article by Stefan Thomas and Roman Inderst,2 both experts in this field of law. Less consensus exists, however, when it comes to the details. Even regulators have diverging views. Among the liberals, there is the Dutch Competition Authority, one of the first ones to have issued, in 2020 and early 2021, detailed guidance with practical examples attached.3 These examples, as nice as they are, suffer from a municipal smell in that they lack grandeur and ambition and do not extend to big-scale industrial collaborations. Admittedly, the latter would easily have cross-border effects and thus escape the jurisdictional reach of Dutch competition law. More recently, the Greek regulator re-emphasised its call for a more sweeping relaxation of antitrust standards.4 The European Commission, initially sustainability-sceptical, has opened a window in the recent Draft 2022 Horizontal Guidelines.5 The Commission is willing to recognize even “out of market”-efficiencies, but it acknowledges with appreciated intellectual honesty that it does not know how to measure them. In many of these scenarios, the underlying fact is that the purchasers of the product or service in question will face supra-competitive purchasing costs due to the anti-competitive agreement. The question then is whether this financial burden is compensated by the fact that the purchasers, or society in general, are compensated by a better-quality product (fruit without pesticides), service (less polluting transport) or an improved environment (fresh air). 2 Roman Inderst & Stefan Thomas, The Scope and Limitations of Incorporating Externalities in Competition Analysis Within a Consumer Welfare Approach, in: World Competition 45, n° 3 (2022), p. 351-386. 3 https://www.acm.nl/en/publications/second-draft-version-guidelines-sustainability-agreements- -opportunities-within-competition-law. 4 file:///C:/Users/User/Downloads/Staff_Discussion_paper%20(1).pdf. 5 https://competition-policy.ec.europa.eu/public-consultations/2022-hbers_en.
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