SUSTAINABILITY AND ARTICLE 101(1) TFEU included some consumer-friendly aspects, it was also fuelled – literally – by the objective to avoid competition through over-fulfilment of regulatory norms. Citing the Court’s ruling in T-Mobile Netherlands, the Commission stated that Article 101 TFEU “is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such”.21 The coordination aimed at limiting technical development. Where a restriction limits output or technical development, Article 101 (1) makes it easy to consider harm to the environment as a restriction of competition. The Commission made it clear that the companies restricted competition on environmental performance, which is still “competition” in the classic sense. Each of the participants participated in the joint discussions out of fear that another participant (or a third party) might announce over-fulfilment, giving it a first mover-advantage in the eyes of innovation-hungry and fuel-saving consumers. However, it remains somewhat puzzling that there is no indication in the public version of the decision that the coordination had a negative financial impact on consumers. Rather the contrary: the small size of AdBlue tanks made a refill necessary in between annual servicing appointments, taking the refill out of the control of service networks and placing it in the hand of car users. In many cases, a do-it-yourself user refill costs less than a network refill. Thus, the competitive harm was non-financial. It may have been a coincidence that Article 101(1) TFEU mentions “technical development”. But what with other types of non-financial harm to customers? Scenario 4: A + B agree to an arrangement which lowers prices for consumers but harms the environment. In this scenario, we assume that two competing parties engage in a collaboration which is clearly favourable to the consumer’s wallet and does not limit technical standards. Only, it significantly harms the environment. To give a purely hypothetical easy to understand example: As air travel becomes more complex and expensive, domestic tourism is on the rise. Two competing international real estate groups join forces to build a huge low-cost hotel complex with room for 20,000 beds on a heretofore well-preserved beach, thereby provoking the outraged outcry of environmental activists who claim 21 Case C-8/08 P, T-Mobile Netherlands, para. 38.
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