Strict competition enforcement is the way forward : also to promote sustainable consumption and production

Abstract

This article investigates the purpose and workings of EU competition law and policy. More specifically, it scrutinizes the claim that sustainable consumption and production (SCP) requires flexible rather than strict enforcement of Article 101 TFEU. Proponents of flexible antitrust argue that SCP requires sector-wide private coordination since manufacturers of sustainable products suffer from first mover disadvantage if consumers may opt for cheaper, less sustainable products. Four main policies have been put forward to legitimize flexible antitrust. Building on the constitutional context, a first policy uses a broad welfare standard to balance competition and sustainability under Article 101(3). Based on the more economic approach, a second policy balances both interests under Article 101(3), provided that a net welfare gain is evidenced in quantitative terms. Grounded in the legitimate objective doctrine introduced in Wouters, a third policy balances both interests under Article 101(1). Motivated by the useful effect doctrine, a fourth policy aims to circumvent antitrust by allowing the government to declare private sector initiatives generally binding. This article questions all four policies. Based on a coherent integration of principle and practice, it shows that strict competition enforcement is the legitimate and effective way forward to achieve SCP. Problems of under-regulation are to be addressed by the regulatory state and require proper articulation of state policy in order to preclude antitrust accountability.