SUSTAINABILITY AND ARTICLE 101(1) TFEU What seems absent, though, is the question whether, to what extent and how sustainability aspects could possibly influence the assessment of Article 101(1) “à charge”, that is the question whether an agreement is capable of potentially restricting “competition” because of the harm it causes to sustainability, even if it is “pro-consumer” from a purely financial point of view. Before we venture into the debate, a quick look at the essential parts of the legal basis: Article 101(1) TFEU prohibits: “1. … all agreements … and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; …. Article 101(3) states: 3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of: any agreement or … practice …, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.” 2. SUSTAINABILITY CONSIDERATIONS IN ARTICLE 101(3) TFEU It is generally acknowledged, and not only in recent times, that competition law and competition policy do not exist in a political and societal vacuum but can and should take into account other policy considerations, be it employment, health, consumer protection, or the environment.
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