Sustainability and Competition Law in Germany

Abstract

Abstract For some time now, there has been a debate in German competition law about how and to what extent sustainability concerns can and should play a role in cartel, abuse of dominance and merger proceedings. Most academics and practitioners in Germany share the view that sustainability and competition law do not usually collide. Nevertheless, conflicts can arise in situations of market failure. The paper first analyses the legal provisions relevant for dealing with these in competition law matters, in particular constitutional law, European law and the German Climate Protection Act. While German competition law used to contain sustainability related exemptions, these have gradually been abolished. In addition, the paper shows that compared with older cases, the Federal Cartel Office has recently taken a more restrictive view on the extent to which sustainability issues can be considered when applying competition law. The paper then examines the case law of German authorities and courts to shed light on how competition and sustainability objectives can be reconciled, focusing on sustainability as both a sword and a shield. Finally, the paper summarizes reform proposals for the next amendment to the German Act against Restraints of Competition which has been announced to focus, inter alia, on sustainability.