order to ensure that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience (…). It has then to be considered whether the consequential efects restrictive of competition are inherent in the pursuit of those objectives.” 14 The draft 2022 Horizontal Guidelines introduce the concept of “sustainability standardization agreements” and provide a “soft safe harbour” of seven criteria 15 ensuring that a sustainability agreement will not even restrict competition. If these 16 criteria are not met, hard factors such as market coverage and mandatory character will determine whether the agreement is caught by Article 101(1) TFEU, in which 17 case it can still be justifed under Article 101(3) TFEU. In early 2022, the Bundeskartellamt, having already submitted a detailed paper on sustainability and competition to the OECD in 2020, ruled on two such 18 sustainability standardization agreements, one of which introduced living wages in the banana sector and the other concerning an animal welfare label. Andreas Mundt, President of the Bundeskartellamt, stated in early 2022: “Competition law does not stand in the way of cooperations for achieving sustainability objectives – on the contrary. Efective competition is part of the solution since sustainability requires innovation, which in turn only emerges in a competitive environment. If a cooperation impedes competition it must be assessed under competition law. However, our work with various initiatives has shown that competition law is fexible enough to support sustainability initiatives especially in setting common standards while making sure that the conditions are fair and transparent. But there are also limits to this. Cooperations have to genuinely improve sustainability and must not only aim to increase the margins of a few companies.” 19 What does that mean for sustainability considerations in Article 101(1)? In all the above cases, a classic restriction of competition was justifed not by Article 101(3) efciencies but by a restrictive interpretation of Article 101(1) TFEU. However, none of these cases dealt with the scenario of a fnancially procompetitive but environmentally harmful agreement. For this we can imagine diferent possible scenarios: ECJ, Case C-309/99, Wouters, paragraph 97. Cf. also ECJ, Case C-519/04 P Meca-Medina, 14 paragraph 14. Draft 2022 HGL, paragraph 561. 15 Ibid., at paragraph 572. 16 Ibid., at paragraph 575. 17 https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Diskussions_Hintergrundpapiere/ 18 2020/-OECD_2020_Sustainability_and_Competition.pdf?__blob=publicationFile&v=2. https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/ 19 2022/18_01_2022-_Nachhaltig-keit.html. .
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