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
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