EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

was the evergreen of conferences and publications around the world. and a bit of a fashion. However, the tendency to see things “more economically” led, among other things, to the removal of the section on environmental agreements from the Horizontal Guidelines on the application of Article 101/3 TFEU (Mayer, p. 259). It is now apparently going to be reintroduced again, and probably as a very important issue. (However, environmental protection has been included in Article 3(3) of the European Treaty since the very beginning, so it is by no means a new goal. Removing environmental considerations from the Horizontal Guidelines and their envisaged revival 10 years later demonstrates the purpose driven nature and political volatility of the out-of-competition goals). In addition to the general proclamation in Article 3/3, the TFEU refers to the environment in Article191, but this is aimed primarily at the EU institutions (and therefore the legislature) and not at private individuals or undertakings (BKA, p. 20). Inthis context, the representativegroupsofpractitioners alsopoint tothequestionability of extending the exemptions under Article 101/3 TFEU (Studienvereinigung, p. 9 ff) and argue that if their narrow definition in relation to competition were abandoned, the exemptions could be extended to broader sustainability objectives such as full employment and social progress. However, if the exemption’s requirements to “promote technical and economic development” were to be extended in this way, it would no longer be about genuine economic efficiencies. Moreover, such externalities would be difficult to quantify and thus to apply practically. Extending exemptions from narrowly economic objective and quantifiable efficiencies to nebulous aspects of benefit to society cannot be supported by a credible benchmark. Some proponents even talk about incentivising to “compete on the future of humanity” (OECD 2021, p. 15, referring to Polman, Winston). It sounds like a borderline of hard-to-operate social engineering and religion. If similar vague terminology were to be adopted, it would undermine legal certainty and would draw the competition authorities into areas where they have neither formal nor professional remit nor political legitimacy. In this context, the suggestion (Studienvereinigung, p. 14) that the EC should set up a special office to better deal with the topic of sustainability, the environment, and the link between the Green Deal and AT seems somewhat counterintuitive. Paradoxically and parabolically, we could also consider funding two antitrust agencies adequately, so that they have the personnel and expertise to keep pace with the increasing size and complexity of the economy (White, p. 9); one might be responsible for the “classical” competition and the other for the “residual” issues of “common welfare”. I believe that the Commission’s intention to allow exemptions to be granted in a different relevant market than in which the agreements in question operate would be a departure from competition considerations. A “trade-off” for a worsening of

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