EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

competition in a given relevant market (in exchange for benefits provided to those consumers in that market) makes sense. The applicability and shifting of benefits to other markets and other consumers under Article 101/3 TFEU means further redistribution of benefits and goods and distortion of competition in the relevant market – I don’t think we should slip into it. The term sustainability also might include aspects such as fair trade or even the welfare-being of animal in the farms has been considered as a new possible theory of harm (Dreyer, Ahlenstiel, p. 79) in this context of sustainability. The 2019 European Green Deal does not foresee AT being at the forefront or the main instrument for its enforcement. Rather, it is about applying existing rules in a way that supports policy objectives in favour of environmental protection. There is no objection to this, as long as it is complementary to the objective of protecting competition, it will not amount to the “green washing” of anti competitive conduct. Changes are foreseen in some block exemptions from the prohibition of agreements under Article 101/1 TFEU. For individual exemptions from the prohibition of agreements, possible positive but non-market effects have not been taken into account so far. The possible policy of not allowing mergers that are disproportionately burdensome on the environment, even if they would not lead to a significant impediment of effective competition and should therefore normally be cleared (green-killer acquisitions), would mean a step on somewhat thinner ice of a new and broader theory of harm. This “more holistic” approach has a strange flavour of sectoral regulation outside the remit of the competition authority (so the proposal that the Commission might also be willing to look at sustainability aspects to actually justify a clearance decision for a merger that would otherwise negatively affect competition and so to admit out-of-market “green efficiencies”, such as cleaner water or air that not only the customers of the merging parties would profit, but society at large; Geisel, Uwago, p. 7). Traditionally, such considerations of out-of-markets effects are fundamentally incompatible with the nature of the competitive assessment (OECD 2021, p. 18, referring to Peeperkorn, Schinkel, Veljanovski). The “crystal ball” normally inevitably being used in merger analyses would be even more opaque due to challenges of the probability of such alleged efficiencies, their quantifying, and the time framing. AT built on the achievement of using the rule of reason in a graspable sense in relation exclusively to competition benchmarks should not give up this methodological advantage. Sustainability can be achieved primarily through appropriate environmental protection policies and legislation. There is no fundamental contradiction between the public interest objectives (which include the protection of the environment and the sustainable development of society) and the objective of protecting competition. As a rule, competition will also lead to the achievement of public welfare goals (BKA, p. 6). Within a well-designed

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