Sustainability considerations and Article 101 (1) TFEU by Bertold Bär-Bouyssiere

(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

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