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

Scenario 4: A + B agree to an arrangement which lowers prices for consumers but harms the environment. In this scenario, we assume that two competing parties engage in a collaboration which is clearly favourable to the consumer’s wallet and does not limit technical standards. Only, it signifcantly harms the environment. To give a purely hypothetical easy to understand example: As air travel becomes more complex and expensive, domestic tourism is on the rise. Two competing international real estate groups join forces to build a huge low-cost hotel complex with room for 20,000 beds on a heretofore well-preserved beach, thereby provoking the outraged outcry of environmental activists who claim irreversible damage to fauna, fora and the wider biosphere. The municipality has signed of on the project as it welcomes the investment, and the existing environmental regulations are rather inefcient but complied with. The protesters think about complaining to both DG COMP and to the local competition authority, known for its strong stance on sustainability issues, and they plan to launch a climate action in a national court. Without going into detail, we consider that this project does not restrict “competition” in the classic sense where “competition” is understood as a purely market-related concept. Nor does this project limit technical development or output. It is just a straightforward real estate project. Ten years ago, a competition advisor may have considered this a clearcut case, but today the assessments seems more complex. There are two potential routes to success for the complainant in our example. The frst one is a wider interpretation of the concept of “competition”. The second one is via the Querschnittsklauseln. a) What is that “competition” which Article 101(1) TFEU protects? We tend to take it for granted that Article 101 protects competition by prohibiting agreements that restrict competition. But what exactly is that “competition”, this unknown if not unknowable deity? The Treaty does not provide an answer to that question. It merely gives us certain examples of how a restriction of competition may look like. Moreover, it is very difcult to fnd a defnition of “competition” in any book about EU competition law. Google defnes it as “an event or contest in which people take part in order to establish superiority or supremacy in a particular area”. If applied to Article 101 (1), this would mean that competition law protects all agreements restricting an individual attempt to establish superiority or supremacy in a particular area. Not sure DG COMP would subscribe to that defnition. Taking one of the leading case books from a generation still interested in the 22 genealogy of intellectual concepts, it begins with a chapter on the economics of competition. The very frst sentence is: “Nowadays, there is a clear awareness of competition policy makers, competition lawyers and judges of the importance of economics for their daily work. In the EU and in the US, it is normal practice to discuss competition cases in terms of economic concepts such as market power, entry barriers, and sunk costs, and to evaluate cases according to their efect on the Jonathan Faull & Ali Nikpay, The EU Law of Competition, 2007. 22

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