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
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