Environmental and Sustainability Aspects in EU Competition Law: Towards a “More Economic & Ecological Approach” Under Article 101 TFEU?

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AbstractSince the European Commission announced its Green Deal in 2019, the debate as regards how European Union (EU) competition law could contribute to making Europe climate-neutral and “green(er)” has steadily increased. However, the discussion about whether aspects other than economic ones shall be considered within the assessment of a measure from a competition law perspective has indeed been going on much longer. Following the European Court of Justice’s (ECJ) landmark judgement in Wouters, for example, there is a strand in the case law where non-economic considerations were taken account of already at the level of Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) itself. The debate on how to interpret Article 101(3) TFEU and the question whether improvements in economic efficiency shall be considered only or whether Article 101(3) TFEU is to be interpreted broadly and in line with the wider EU aims and objectives, such as, for example, social, environmental or sustainability aspects, serves as another example to this effect. Against this backdrop, this article shall provide an analysis of the Treaty competition provision of Article 101, and shed light on the question if, to what extent and on which legal basis environmental considerations and sustainability aspects, can be taken account of within the current competition law framework of the European Union. Hence, light shall be shed on the question whether our competition law toolkit is “fit and proper” to meet the challenges as imposed by climate change.