www.tourismlaw.pt Sustainability and Article 101(1) TFEU – Exploring (almost) virgin territory – Bertold Bär-Bouyssiere Of Counsel in the Brussels and Berlin Offices of Dentons Europe International Journal of Tourism, Travel and Hospitality Law PRE-PRINT
Sustainability and Article 101(1) TFEU – Exploring (almost) virgin territory – Bertold Bär-Bouyssiere, LL.M. 1 1. Introduction Much ink is spilled – and the debate is intense – about how to integrate considerations of environmental protection and sustainability into competition law. There is some urgency to the issue, given the imminence of climatic changes. Admittedly, the recent discovery by the James Webb Space Telescope of the planet Speculoos-2c, formerly known as LP 890-9c, has taken some steam out of the process, as we now see the possibility of a plan B – the planet is just 100 light years away from ours, a Katzensprung. The debate so far concentrates on the question as to whether and how environmental protection considerations can justify a potential restriction of competition. Technically speaking, and only from an EU law point of view, the debate is mostly, albeit not exclusively, framed in terms of efciencies: if an agreement falls within the scope of Article 101 (1) TFEU, can it be exempted on sustainability grounds based on Article 101 (3) TFEU? There is a de facto consensus today that the answer to the question is afrmative. Since long ago, noncompetition considerations have been considered in the efciency assessment, such as employment, health, consumer protection, industrial policy, or innovation for example. The most recent overview of the debate can be found in a comprehensive article by Stefan Thomas and Roman Inderst, both experts in this 2 feld of law. Less consensus exists, however, when it comes to the details. Even regulators have diverging views. Among the liberals, there is the Dutch Competition Authority, one of the frst ones to have issued, in 2020 and early 2021, detailed guidance with practical examples attached. These examples, as nice as they are, sufer from a 3 municipal smell in that they lack grandeur and ambition and do not extend to bigscale industrial collaborations. Admittedly, the latter would easily have cross-border efects and thus escape the jurisdictional reach of Dutch competition law. More recently, the Greek regulator re-emphasised its call for a more sweeping relaxation Dr. Bertold Bär-Bouyssiere is a senior competition specialist working in Brussels since 1996. He is 1 currently Of Counsel in the Brussels and Berlin Ofces of Dentons Europe. Roman Inderst & Stefan Thomas, The Scope and Limitations of Incorporating Externalities in 2 Competition Analysis Within a Consumer Welfare Approach, in: World Competition 45, n° 3 (2022), p. 351-386. https://www.acm.nl/en/publications/second-draft-version-guidelines-sustainability-agreements- 3 opportunities-within-competition-law.
of antitrust standards. The European Commission, initially sustainability-sceptical, 4 has opened a window in the recent Draft 2022 Horizontal Guidelines. The 5 Commission is willing to recognize even “out of market”-efciencies, but it acknowledges with appreciated intellectual honesty that it does not know how to measure them. In many of these scenarios, the underlying fact is that the purchasers of the product or service in question will face supra-competitive purchasing costs due to the anticompetitive agreement. The question then is whether this fnancial burden is compensated by the fact that the purchasers, or society in general, are compensated by a better-quality product (fruit without pesticides), service (less polluting transport) or an improved environment (fresh air). What seems absent, though, is the question whether, to what extent and how sustainability aspects could possibly infuence 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 fnancial 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 afect trade between Member States and which have as their object or efect the prevention, restriction or distortion of competition within the internal market, and in particular those which: (a) directly or indirectly fx 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 beneft, and which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; fle:///C:/Users/User/Downloads/Staf_Discussion_paper%20(1).pdf. 4 https://competition-policy.ec.europa.eu/public-consultations/2022-hbers_en. 5
(b) aford 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. This line of thinking suggests that Article 101, whose mission in is to protect “competition”, is open, at least to a certain extent, to broader social considerations of societal welfare (“Gemeinwohlaspekte”). In recent years it has become more widespread to link the specifc policy chapters of the Treaty to the fundamental treaty provisions, in particular the so-called “Querschn i t tsk l ause l n” ( “ Integrat ion Cl auses” or “z i e l verpf i chtende Gemeinwohlklauseln”). For example, Article 11 TFEU obliges the EU organs to consider sustainability considerations when defning and implementing specifc policies. Article 7 TFEU emphasises the importance of overall coherence between individual policies, without prejudice to the principle of conferral (“Prinzip der Einzelermächtigung”). Compliance with both articles is open to judicial review, notwithstanding a wide margin of discretion. Moreover, maybe infuenced by the spread of ESG-thinking, we look today more often at the Treaty on the European Union, with its articles on values (Article 2 TEU) and aims of the EU (Article 3 TEU). Article 3(3) TEU does not even mention “competition” as a standalone aim - due to the intervention of France. “Competition” as such is only mentioned in Protocol 27, stating that if necessary, the EU will take action to ensure that the internal market includes a system ensuring that competition is not distorted. Contrary to the concept of “competition”, however, sustainable development is expressly mentioned in Article 3(3) TEU. Further, Article 3(1) clearly and expressly states that it is the Union's aim “to promote peace, its values and the well-being of its peoples”. Seasoned competition law practitioners looking at Treaty fundamentals through the lens of the specifc and far-reaching powers given to the EU in the feld of competition law by the principle of conferral, are conditioned to reason that Article 101(1) is the domain of “market only considerations” and that any non-competition considerations only come into play, if at all, in the context of Article 101(3) TFEU, a bit like pale watercolours adding shades to an aquarelle. The question is whether this is still a correct view of things. Arguably, Article 101 protects “competition” and Article 101(3) provides an exemption, under certain conditions, from whatever the protection of competition commands. The efect of the exemption is to declare inapplicable the prohibition which results from the competition law analysis (now a “Legalausnahme”). The fourpronged test provided by Article 101(3) is labelled “efciencies”. This term is
somewhat ambiguous. It may be viewed narrowly as a justifcation of a restriction by consumer welfare benefts. It can also be viewed more broadly as allowing nonmonetary justifcations. 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 infuence the application of Article 101 TFEU. A 2013 seminar paper by Thomas Peter asks the same question 6 but comes to slightly diferent outcomes. A 2015 doctoral thesis by Florian Wagner 7 focusses on Article 101(3) only, and quite radically so. There is fourth one, but I will 8 mention it later to maintain the suspense. The papers reveal that the nature of the efciency analysis is far from simple. Florian Wagner demonstrates quite convincingly that in all Commission decisions assessing Article 101(3) TFEU prior to 2004, hardcore efciencies were the basis for the exemption, even if wider societal considerations were also discussed. Polina Bozhilova concludes that efciencies 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 justifcations, notably a transposition of the Cassis-doctrine by analogy, 9 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 UN sustainable development goals. It adds that “competition law enforcement contributes to sustainable development by ensuring efective competition, which spurs innovation, Polina Bozhilova, Die Einbeziehung außerwettbewerblicher Erwägungen in Artikel 81 EGV, Europa- 6 Kolleg Hamburg, 2010. Thomas Peter, Die Berücksichtigung nicht-wettbewerblicher Ziele in Arti. 101 AEUV, Würzburger 7 Online-Schriften zum Europarecht, 2014. Florian Wagner, Die Auslegung von Art. 101 Abs. 3 durch die EU-Kommission in 8 Bekanntmachungen, Leitlinien und Gruppenfreistellungsverordnungen, 2015. ECJ, Case 120/78, REWE-Zentralorgan / Bundesmonopolverwaltung für Branntweine, Judgment of 9 20 February 1978.
increases the quality and choice of products, ensures an efcient allocation of resources, reduces the costs of production, and thereby contributes to consumer welfare.” 10 This bold and reassuring statement is welcome and dissipates any doubt about the issue. However, we are still unclear about the place of sustainability in Article 101(1). 3. Sustainability considerations in Article 101 (1) TFEU? Scholars have debated for years whether and to what extent “non-competition considerations” can play a role in Article 101(1). According to the Commission’s Article 101 (3) Notice, “for an agreement to be restrictive by efect it must afect actual or potential competition to such an extent that on the relevant market negative efects on prices, output, innovation or the variety or quality of goods and services can be expected with a reasonable degree of probability.” This language emphasizes the strictly economic nature of the 11 “competition” restriction. The Court also clarifed repeatedly that Article 101(1) does not include a US-style “rule of reason” test, and therefore no “balancing” takes place. 12 However, similar to what we have seen in Cassis, in exceptional cases a restriction of competition is outside the scope of Article 101(1) TFEU due to overriding social considerations, like an ancillary restraint (“Immanenztheorie”). For example, in Albany, the Court held in relation to a compulsory pension fund that “it is beyond question that certain restrictions of competition are inherent in collective agreements between organisations representing employers and workers. However, the social policy objectives pursued by such agreements would be seriously undermined if management and labour were subject to Article 85(1) of the Treaty when seeking jointly to adopt measures to improve conditions of work and employment. It therefore follows from an interpretation of the provisions of the Treaty as a whole which is both efective and consistent that agreements concluded in the context of collective negotiations between management and labour in pursuit of such objectives must, by virtue of their nature and purpose, be regarded as falling outside the scope of Article 85(1) of the Treaty.” 13 Similarly, in Wouters, the ECJ held in relation to mandatory bar rules that “not every agreement between undertakings or every decision of an association of undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article 85(1) of the Treaty. For the purposes of application of that provision to a particular case, account must frst of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its efects. More particularly, account must be taken of its objectives, which are here connected with the need to make rules relating to organisation, qualifcations, professional ethics, supervision and liability, in Draft 2022 Horizontal Guidelines, para. 544. 10 Guidelines on the application of Article 81(3) of the Treaty (2004/C 101/08), paragraph 24. 11 12 ECJ, Case 67/96, Albany, paragraph 59 f. 13
order to ensure that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience (…). It has then to be considered whether the consequential efects restrictive of competition are inherent in the pursuit of those objectives.” 14 The draft 2022 Horizontal Guidelines introduce the concept of “sustainability standardization agreements” and provide a “soft safe harbour” of seven criteria 15 ensuring that a sustainability agreement will not even restrict competition. If these 16 criteria are not met, hard factors such as market coverage and mandatory character will determine whether the agreement is caught by Article 101(1) TFEU, in which 17 case it can still be justifed under Article 101(3) TFEU. In early 2022, the Bundeskartellamt, having already submitted a detailed paper on sustainability and competition to the OECD in 2020, ruled on two such 18 sustainability standardization agreements, one of which introduced living wages in the banana sector and the other concerning an animal welfare label. Andreas Mundt, President of the Bundeskartellamt, stated in early 2022: “Competition law does not stand in the way of cooperations for achieving sustainability objectives – on the contrary. Efective competition is part of the solution since sustainability requires innovation, which in turn only emerges in a competitive 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 fexible 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 justifed not by Article 101(3) efciencies but by a restrictive interpretation of Article 101(1) TFEU. However, none of these cases dealt with the scenario of a fnancially procompetitive but environmentally harmful agreement. For this we can imagine diferent possible scenarios: ECJ, Case C-309/99, Wouters, paragraph 97. Cf. also ECJ, Case C-519/04 P Meca-Medina, 14 paragraph 14. Draft 2022 HGL, paragraph 561. 15 Ibid., at paragraph 572. 16 Ibid., at paragraph 575. 17 https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Diskussions_Hintergrundpapiere/ 18 2020/-OECD_2020_Sustainability_and_Competition.pdf?__blob=publicationFile&v=2. https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/ 19 2022/18_01_2022-_Nachhaltig-keit.html. .
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 fne. 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 fne. There is also room for an efects analysis. In that event, a competition authority could easily fnd 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 fxes trading conditions relevant to sustainability considerations. This scenario would be like the Ad Blue decision. In that decision, the Commission 20 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 included some consumer-friendly aspects, it was also fuelled – literally – by the objective to avoid competition through over-fulflment 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”. The coordination aimed at limiting technical development. 21 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-fulflment, giving it a frst moveradvantage 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 fnancial impact on consumers. Rather the contrary: the small size of AdBlue tanks made a refll necessary in between annual servicing appointments, taking the refll out of the control of service networks and placing it in the hand of car users. In many cases, a do-it-yourself user refll costs less than a network refll. Thus, the competitive harm was non-fnancial. It may have been a coincidence that Article 101(1) TFEU mentions “technical development”. But what with other types of non-fnancial harm to customers? Case AT.40178 – Car Emissions, Decision of 8 July 2021, at paragraph 119. 20 Case C-8/08 P, T-Mobile Netherlands, para. 38. 21
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 signifcantly 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 irreversible damage to fauna, fora and the wider biosphere. The municipality has signed of on the project as it welcomes the investment, and the existing environmental regulations are rather inefcient but complied with. The protesters think about complaining to both DG COMP and to the local competition authority, known for its strong stance on sustainability issues, and they plan to launch a climate action in a national court. Without going into detail, we consider that this project does not restrict “competition” in the classic sense where “competition” is understood as a purely market-related concept. Nor does this project limit technical development or output. It is just a straightforward real estate project. Ten years ago, a competition advisor may have considered this a clearcut case, but today the assessments seems more complex. There are two potential routes to success for the complainant in our example. The frst one is a wider interpretation of the concept of “competition”. The second one is via the Querschnittsklauseln. a) What is that “competition” which Article 101(1) TFEU protects? We tend to take it for granted that Article 101 protects competition by prohibiting agreements that restrict competition. But what exactly is that “competition”, this unknown if not unknowable deity? The Treaty does not provide an answer to that question. It merely gives us certain examples of how a restriction of competition may look like. Moreover, it is very difcult to fnd a defnition of “competition” in any book about EU competition law. Google defnes it as “an event or contest in which people take part in order to establish superiority or supremacy in a particular area”. If applied to Article 101 (1), this would mean that competition law protects all agreements restricting an individual attempt to establish superiority or supremacy in a particular area. Not sure DG COMP would subscribe to that defnition. Taking one of the leading case books from a generation still interested in the 22 genealogy of intellectual concepts, it begins with a chapter on the economics of competition. The very frst sentence is: “Nowadays, there is a clear awareness of competition policy makers, competition lawyers and judges of the importance of economics for their daily work. In the EU and in the US, it is normal practice to discuss competition cases in terms of economic concepts such as market power, entry barriers, and sunk costs, and to evaluate cases according to their efect on the Jonathan Faull & Ali Nikpay, The EU Law of Competition, 2007. 22
market. Competition policy is economic policy concerned with economic structures, economic conduct, and economic efects. It is for this reason that in a book on competition law an introduction to the economics of competition is of importance.” Over more than 80 pages, the chapter provides an excellent 23 overview of the diferent concepts, schools and approaches of competition economics, but nowhere does it defne “competition” as such. Most frequently, the term “competition” comes with an adjective, such as “perfect competition”, “oligopolistic competition”, “workable competition”, “efective competition”, “unfair competition”, all of which remain ambiguous as to whether they refer to a process, a state of play, or both. Not even the detailed chapter on Article 101 contains such a defnition, although the standalone word “competition” is part of the norm. The authors elegantly avoid the issue by defning what constitutes a “restriction” of competition. In a random sentence, the book chapter refers to “restrictions of rivalry” – does this mean that competition is just “rivalry”? If so, it would be a 24 process, not a state of play. In the German scholarly literature, the massive “Kommentare”, eminent authors from academia suggest that the term “competition” is meaningless and requires 25 colorization, which then depends on the competition policy concept pursued. On the legal side, an eminent scholar acknowledges the dilemma of working with a 26 key concept that remains undefned, as neither the Treaty nor economic competition doctrine provide any defnition. There are to lines of thought about what competition might stand for. Some emphasise the voluntary limitation of the company’s own freedom of conduct (“Selbständigkeitspostulat”), others the impact on the alternative choices of third parties, be they competitors, suppliers, or buyers. The Court combines the two aspects but remains vague. On one hand there must be a limitation of the parties’ freedom to act. On the other hand, there must be an impact on something which falls within the scope of what we call “competition”. 27 While antitrust law, antitrust policy and antitrust economics have given quite diferent interpretations to the concept of “competition” since antitrust was invented in 1890, biodiversity was never part of it. However, it does not sound absurd to consider for a moment that the well-known “level playing feld” which competition law should ensure for all market players must necessarily include green grass, fresh water and pure air. In fact, in a recent master thesis from Leiden University (2022), Tuncer Özgür Kiliç, argues that one of the goals of competition law is not just consumer welfare but the well-being of the EU people. 28 Lucas Peeperkorn & Vincent Verouden, in Faull / Nikpay, p. 4. 23 Ali Nikpay, Lars Kjolbe & Jonathan Faull, in Faull & Nikpay, p. 234. 24 Ingo Schmidt & Justus Haucap, Wettbewerbspolitik und Kartellrecht, 10th Edition 2013, p. 3. 25 Volker Emmerich, Artikel 101 Abs. 1 AEUV, in: Ulrich Immenga & Ernst-Joachim Mestmäcker, 26 Wettbewerbsrecht, Band 1. EU/Teil 1 (5th Edition 2012), paragraph 107 f. Ibid., at para. 109. 27 The Hidden Goal of EU Competition Law: Well-Being of People, Leiden (2022). 28
Indeed, according to Article 3 TEU, the Union's aim (“Ziel”) is to promote peace, the Union’s values and the well-being of its peoples (1). It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and based on a high level of protection and improvement of the quality of the environment. It shall promote scientifc and technological advance (3). The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties (6). According to Kiliç, “it is clear that EU competition law has objectives other than just regulating the market.” If so, competition law also has the objective to ensure 29 sustainability and environmental protection. In short, Kiliç sees well-being as “longterm consumer welfare”. Kiliç looks at well-being through the lens of digital regulation, but his argumentative pattern is fully transposable to sustainability. What Kiliç does not discuss in his paper is whether and how this long-term consumer welfare goal can transpire in a competition law decision in line with the principle of conferral. His reasoning implies that it could. If well-being is long-term consumer welfare within the meaning of Article 101(1) TFEU, DG Comp, national competition authorities (when applying Article 101 TFEU) and national courts could, and even would have to, prohibit environmentally harmful but fnancially pro-competitive agreements. b) What is the reach of Querschnittsklauseln? An alternative path seems to be the route via the Querschnittsklauseln. This path may even be overlappting with Kiliç’s long-term consumer welfare. We need to go back to the basics. Pursuant to Article 11 TFEU, environmental protection requirements must be integrated into the defnition 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 justifcation assessment under Article 101(3) TFEU, there is no logical reason 30 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 feld of energy policy. Article 194 TFEU mentions, inter alia, the principle of energy solidarity. More specifcally, the article commands the EU to conduct its energy policy in a spirit of solidarity. In Ibid., p. vii. 29 Dirk Gasse, Bedeutung der Querschnittsklauseln (2000), p. 173; Ludger Breuer, Das EU- 30 Kartellrecht im Kraftfeld der Unionsziele (2013), p. 492; but cf. Dirk Ehle, Die Einbeziehung des Umweltschutzes in das Europäische Kartellrecht (1997), p. 125.
Opal, the General Court annulled a decision adopted by the Commission in the 31 feld 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 feld of energy policy. It is not yet settled case law whether and to what extent the Commission would be obliged to specifcally discuss and examine the principle of energy solidarity in a decision in the feld 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 defne 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, any EU legal 32 act that does not sufciently take into account environmental protection can be challenged and annulled via Article 263 TFEU. This view is contested by others. 33 The Greek Competition Authority looks intensively at the issue of policy cohesion, and the paper by Inderst and Thomas puts the issue quite directly, albeit from the softening and not from the hardening angle: “The consideration of such externalities may thus be seen rather a matter of environmental regulation and policy, and not, to put it bluntly, an excuse for the softening of the competition rules. As with the debate on the multi-goals approach of competition law, however, we do not take a stance on whether society is indeed best served when each institution, such as an antitrust agency or an environmental agency, is given q one-dimensional task – and we see both arguments in favour and against such a view from a conceptual and practical perspective.” 34 Personally, I would feel comfortable advising that Article 3 TEU cannot be the basis of a claim on a standalone basis, but I would not bet on the impossibility of an Article 11 TFEU attack. According to Anja Käller, even Member States must 35 comply with Article 11 whenever they are applying EU law. However, even according to her, Article 11 is not sufciently detailed to form the basis of nonaction claims (Article 265 TFEU). Scholars are divided and the issue is not settled. I am not enough of a constitutionalist to provide a fnal answer to these questions. The objective is simply to delimit some virgin territory. Given that that Elon will not take all of us on the journey to Speculoos, environmental protection remains a pressing matter for the survival of mankind. We cannot be certain that we will not be surprised one day by a competition law decision taking that into account. There are parallels. The Commission has used its powers in competition law to overcome issues rooted in non-harmonized areas such as taxation or intellectual Case T-833/16, Poland v. Commission (2021). 31 Anja Käller, in: Ulrich Becker, Armin Hatje, Johann Schoo & Jürgen Schwarze, EU-Kommentar, 4th 32 Edition 2019, Article 11, paragraph 18. Ludwig Krämer, in: Hans von der Groeben, Armin Hatje & Jürgen Schwarze (2015), Artikel 11, 33 paragraph 28. Ibid., p. 355 f. 34 Above note 32. 35
property. State aid law one day discovered that any defciency in the public procurement process automatically led to the presence of State aid. Some authors point out that there is not only “perfect competition” but also “toxic competition”. 36 Finally, there is a well-established analogy in distribution law: a wholesaler can be lawfully prohibited from selling to end users (“Sprunglieferungsverbot”). Competition is restricted here, but it is not the competition that Article 101(1) protects (“schutzwürdiger Wettbewerb”). Last but not least, the climate issue may become an all-overriding issue, compelling an ad hoc combination of classic legal and novel political instruments similar to those we have seen in the aftermath of the 2008 fnancial crisis. Conclusion There is currently no case law or even scholarly discussion on the obligation of competition authorities and national courts to ensure the reconciliation of decisions in the feld of competition law with sustainability imperatives where this would mean prohibiting an otherwise pro-competitive agreement on sustainability grounds. However, although it is rather unlikely that a competition authority or court will fnd such an obligation in the immediate future, it does not seem wholly impossible either. Who other than ESG-heavyweight Robert G. Eccles would have thought ten years ago that institutional investors would one day base their investment decision on ESG-considerations and that integrated reporting would become the norm? Brussels, 13 October 2022 Maurice E. Stucke & Ariel Ezrachi, Competition Overdose- - How Free Market Mythology 36 Transformed Us from Citizens Kings to Market Servants, 2020.
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