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
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