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

Scenario 1: A and B agree secretly to an arrangement which increases prices to a supra-competitive level and which on top harms the environment. In this scenario, we deal with a classic straightforward restriction of competition by object, which is clearly prohibited. Arguably, a prohibition decision does not even need to address the environmental aspect in the assessment of Article 101(1), but it could be an aggravating factor in the calculation of a fne. Scenario 2: A and B agree publicly to an arrangement which increases prices to a supra-competitive level and harms the environment. This is similarly straightforward case. The public character does not preclude an object assessment, but the companies might avoid a fne. There is also room for an efects analysis. In that event, a competition authority could easily fnd a restriction of competition without having to rely on the environmental harm. Scenario 3: A and B agree secretly to an arrangement which lowers product prices but fxes trading conditions relevant to sustainability considerations. This scenario would be like the Ad Blue decision. In that decision, the Commission 20 found that car manufacturers had exchanged information and agreed to coordinate conduct in respect of tank sizes for CO2-reducing fuel additives. While the overall collaboration had a legitimate purpose and even included some consumer-friendly aspects, it was also fuelled – literally – by the objective to avoid competition through over-fulflment of regulatory norms. Citing the Court’s ruling in T-Mobile Netherlands, the Commission stated that Article 101 TFEU “is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such”. The coordination aimed at limiting technical development. 21 Where a restriction limits output or technical development, Article 101 (1) makes it easy to consider harm to the environment as a restriction of competition. The Commission made it clear that the companies restricted competition on environmental performance, which is still “competition” in the classic sense. Each of the participants participated in the joint discussions out of fear that another participant (or a third party) might announce over-fulflment, giving it a frst moveradvantage in the eyes of innovation-hungry and fuel-saving consumers. However, it remains somewhat puzzling that there is no indication in the public version of the decision that the coordination had a negative fnancial impact on consumers. Rather the contrary: the small size of AdBlue tanks made a refll necessary in between annual servicing appointments, taking the refll out of the control of service networks and placing it in the hand of car users. In many cases, a do-it-yourself user refll costs less than a network refll. Thus, the competitive harm was non-fnancial. It may have been a coincidence that Article 101(1) TFEU mentions “technical development”. But what with other types of non-fnancial harm to customers? Case AT.40178 – Car Emissions, Decision of 8 July 2021, at paragraph 119. 20 Case C-8/08 P, T-Mobile Netherlands, para. 38. 21

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