The new sustainability exemption according to § 2(1) Austrian Cartel Act and its relationship with Article 101 TFEU – European spearhead or born to fail?

Abstract

ABSTRACT The Austrian legislator, together with the adaptions to be made in order to implement the ECN+ Directive, decided to include into national law, i.e. § 2(1) Austrian Cartel Act serving as corresponding rule to Article 101(3) TFEU, a sustainability exemption from the prohibition on cartels as stipulated in § 1 Austrian Cartel Act being the Austrian counterpart to Article 101(1) TFEU. Hence, in light of Regulation 1/2003 it arguably made a bold decision as the adoption of such exemption into national law is anything but uncontroversial. Moreover, also its compatibility with Article 101(3) TFEU is not clear-cut, as the inclusion of aspects other than economic ones, i.e. environmental and sustainability considerations, in the assessment of exemptions at the European level has been subject to debate ever since. This article shall shed light on the issues emanating from this new sustainability exemption and its relationship with the given EU legal framework.