INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW environment. If a cooperation impedes competition it must be assessed under competition law. However, our work with various initiatives has shown that competition law is flexible enough to support sustainability initiatives especially in setting common standards while making sure that the conditions are fair and transparent. But there are also limits to this. Cooperations have to genuinely improve sustainability and must not only aim to increase the margins of a few companies.”19 What does that mean for sustainability considerations in Article 101(1)? In all the above cases, a classic restriction of competition was justified not by Article 101(3) efficiencies but by a restrictive interpretation of Article 101(1) TFEU. However, none of these cases dealt with the scenario of a financially pro- -competitive but environmentally harmful agreement. For this we can imagine different possible scenarios: Scenario 1: A and B agree secretly to an arrangement which increases prices to a supra-competitive level and which on top harms the environment. In this scenario, we deal with a classic straightforward restriction of competition by object, which is clearly prohibited. Arguably, a prohibition decision does not even need to address the environmental aspect in the assessment of Article 101(1), but it could be an aggravating factor in the calculation of a fine. Scenario 2: A and B agree publicly to an arrangement which increases prices to a supra-competitive level and harms the environment. This is similarly straightforward case. The public character does not preclude an object assessment, but the companies might avoid a fine. There is also room for an effects analysis. In that event, a competition authority could easily find a restriction of competition without having to rely on the environmental harm. Scenario 3: A and B agree secretly to an arrangement which lowers product prices but fixes trading conditions relevant to sustainability considerations. This scenario would be like the Ad Blue decision.20 In that decision, the Commission found that car manufacturers had exchanged information and agreed to coordinate conduct in respect of tank sizes for CO2-reducing fuel additives. While the overall collaboration had a legitimate purpose and even 19 https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2022/18_01_2022-_ Nachhaltig-keit.html.. 20 Case AT.40178 – Car Emissions, Decision of 8 July 2021, at paragraph 119.
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