Is green becoming a grey area? A discussion on sustainability and merger control

Abstract

The European Commission recently published revised horizontal guidelines that specify the conditions under which cooperation agreements that deliver significant sustainability benefits may be exempted. This is in sharp contrast with merger control where no change to the current framework has been considered. This article therefore assesses the extent to which current EU merger control is well suited to deal with the impact that mergers may have on sustainability. A review of all EU merger cases from the past 10 years shows that the current framework focuses on direct consumers’ preferences. As such, it ignores both positive and negative externalities mergers may have on sustainability. This article sets out a potential analytical framework to consider these externalities in merger assessment but concludes that properly considering them is likely to raise practical challenges. Driving change in companies’ behaviours and consumer preferences through regulation may be a better instrument to support sustainability objectives.