Falling Through the Cracks no More? Article 102 TFEU and Sustainability I – the Nexus Between Dominance, Environmental Degradation, and Social Injustice

Abstract

With the climate and environment emergency as backdrop, we ask whether EU competition law and in particular Article 102 TFEU can and should be part of a holistic EU solution to solving the crisis and if so how it can contribute to ensuring that our social, economic, and ecological systems are not entrenched into further perpetuating and mutually reinforcing crises. This question relates to the existing debate about the goals of EU competition law and the relationship between antitrust and sustainability, but we broaden the perspective through the combination of legal with socioecological research. As shown in this paper, there is a significant sustainability gap in EU competition law, in particular when it comes to enforcing Article 102 TFEU as a 'sword' vis-a-vis dominant undertakings' conduct that has an impact on the environment. By using EU constitutional theories of 'mainstreaming', we show that a case can be made for including environmental and social sustainability goals in those that are pursued by EU competition law in order to hinder 'unsustainable business conduct' that harms people and planet. With research that cuts across law and socioecological studies, we offer an original and unique perspective that identifies hermeneutically and empirically a nexus between market power and business practices that harm people and planet. We do this, by demonstrating empirically, that undertakings that have in the past been found to be dominant by the Commission, also engage in unsustainable business practices. We show that this nexus is significant, as it demonstrates that addressing unsustainable business practices through the enforcement of Article 102 TFEU is not only a theoretical possibility mandated by EU constitutional law. It is a real opportunity to address environmental and social injustices and thereby contribute to tackling the most important existential threat currently facing humanity, climate change, by reading the relevant competition law test for ‘abuse’ through the constitutional law lens.