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.
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