SUSTAINABILITY AND ARTICLE 101(1) TFEU In preparation of my conference contribution, I came across a few student papers that provided helpful insights. A 2009 master thesis by Polina Bozhilova questions whether and how non-competition considerations can influence the application of Article 101 TFEU.6 A 2013 seminar paper by Thomas Peter asks the same question but comes to slightly different outcomes.7 A 2015 doctoral thesis by Florian Wagner focusses on Article 101(3) only, and quite radically so.8 There is fourth one, but I will mention it later to maintain the suspense. The papers reveal that the nature of the efficiency analysis is far from simple. Florian Wagner demonstrates quite convincingly that in all Commission decisions assessing Article 101(3) TFEU prior to 2004, hardcore efficiencies were the basis for the exemption, even if wider societal considerations were also discussed. Polina Bozhilova concludes that efficiencies may be quantitative and qualitative, at least where they tangibly improve product quality or advance technical and/or economic progress. She lists several Commission decisions taking sustainability considerations or other societal aspects into account. She then explores additional non-written justifications, notably a transposition of the Cassis -doctrine9 by analogy, an option that she eventually rejects. To a limited extent, she allows Article 11 TFEU and other “Querschnittsklauseln” to inform the application of Article 101(3). Finally, she points to the system change in 2004, which created new uncertainties. The paper of Thomas Peter provides additional insights. He concludes for the post-2004 era that societal considerations have their place within Article 101(3), provided this is somehow linked to competition goals. Like Polina, Thomas advocates for the admissibility of Article 11 TFEU considerations but is sceptical about Cassis. When reading the sustainability chapter in the Commission’s Draft Horizontal Guidelines from March 2022, the jurisdictional aspect is straightforward. The text mentions that sustainable development is a core principle of the Treaty enshrined in Article 3 TEU and that the Commission is committed to meet the 6 Polina Bozhilova, Die Einbeziehung außerwettbewerblicher Erwägungen in Artikel 81 EGV, Europa-Kolleg Hamburg, 2010. 7 Thomas Peter, Die Berücksichtigung nicht-wettbewerblicher Ziele in Arti. 101 AEUV, Würzburger Online- -Schriften zum Europarecht, 2014. 8 Florian Wagner, Die Auslegung von Art. 101 Abs. 3 durch die EU-Kommission in Bekanntmachungen, Leitlinien und Gruppenfreistellungsverordnungen, 2015. 9 ECJ, Case 120/78, REWE-Zentralorgan / Bundesmonopolverwaltung für Branntweine, Judgment of 20 February 1978.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==