SUSTAINABILITY AND ARTICLE 101(1) TFEU Pursuant to Article 11 TFEU, environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities with a view to promoting sustainable development. According to several authors, the case law cited above (Wouters, etc.) suggests that Querschnittsklauseln can lead to a restrictive application of Article 101(1). While this should remain the exception to the rule that Article 101(1) is normally about hard economic facts, and that wider social considerations normally only come into play in the justification assessment under Article 101(3) TFEU,30 there is no logical reason why Article 101(1) TFEU should and could be immunized against the “environmentalization of competition policy”. However, while it is easy to accept that sustainability considerations are behind the soft safe harbour for sustainability standardization agreements, it is still unclear whether and how sustainability considerations can compel competition authorities and courts to block an otherwise pro-competitive agreement. There has been a recent relevant development in the field of energy policy. Article 194 TFEU mentions, inter alia, the principle of energy solidarity. More specifically, the article commands the EU to conduct its energy policy in a spirit of solidarity. In Opal,31 the General Court annulled a decision adopted by the Commission in the field of energy policy because it had not examined the principle of energy solidarity. However, in this case, the contested Commission decision was adopted in the field of energy policy. It is not yet settled case law whether and to what extent the Commission would be obliged to specifically discuss and examine the principle of energy solidarity in a decision in the field of competition policy relating to the energy industry. If so, there would be a tension with the principle of conferral (“Grundsatz der Einzelermächtigung”). Note that Article 194 TFEU is for energy policy what Article 191 TFEU is for environment. Both define the respective policies (“Kompetenzklauseln”) but are not Querschnittsklauseln. Article 11, however, is such a Querschnittsklausel. It is subject to judicial review (“justiziabel”). According to some commentators,32 any EU legal act that does not sufficiently take into account environmental 30 Dirk Gasse, Bedeutung der Querschnittsklauseln (2000), p. 173; Ludger Breuer, Das EU-Kartellrecht im Kraftfeld der Unionsziele (2013), p. 492; but cf. Dirk Ehle, Die Einbeziehung des Umweltschutzes in das Europäische Kartellrecht (1997), p. 125. 31 Case T-833/16, Poland v. Commission (2021). 32 Anja Käller, in: Ulrich Becker, Armin Hatje, Johann Schoo & Jürgen Schwarze, EU-Kommentar, 4th Edition 2019, Article 11, paragraph 18.
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