Reply to European Commission Call on 'Competition Policy Supporting the European Green Deal'

9 Pages Posted: 18 Mar 2021

Date Written: February 2, 2021

Abstract

This short paper was submitted in reply to the European Commission’s call for contributions on competition policy supporting the Green Deal. It welcomes the change in the Commission policy towards expressly incorporating sustainability in ‘private’ competition law. Regarding State aid, the paper argues that while Hinkley Point has shifted the balancing of positive effects to Article 107(3)(b) TFEU, sustainability may still be controlled under (c) insofar as it designates the economic activity benefiting from the aid. Moreover, Hinkley Point reinforces the conditionality of aid to compliance with environmental rules, which should be implemented in notification and de minimis regulation. On anti-competitive behaviour, the paper holds that existing rules are sufficiently flexible to exclude a restriction of competition or apply a Wouters justification to arrangements pursuing sustainability, and this should be reflected in guidance and regulation. It nevertheless cautions against balancing detriment to consumers against benefits to society under Article 101(3) TFEU, since it unduly stretches that provision and is likely to underestimate the importance of sustainability. In relation to merger control, the paper suggests that theories of harm to innovation and the analysis of acquisition markets should be expressly related to sustainability. It further asks whether merger control should be subject to the same conditionality of environmental compliance as State aid.

Keywords: EU Competition Law, Competition Policy, Sustainability

JEL Classification: K21

Suggested Citation

Costa-Cabral, Francisco, Reply to European Commission Call on 'Competition Policy Supporting the European Green Deal' (February 2, 2021). Available at SSRN: https://ssrn.com/abstract=3778154 or http://dx.doi.org/10.2139/ssrn.3778154

Francisco Costa-Cabral (Contact Author)

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

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