EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

ecological framework, competition works in favour of environmental protection, leads to efficient use of scarce resources, and prevents waste (Heinemann). This can be demonstrated by the example of so-called green mergers. Traditionally, abstract industrial policy and regulatory considerations should not be a criterion in the assessment of a merger. Rather, merger control aims to maintain competitive market structures and, in particular, to prevent the emergence of market power. It is an instrument of market structure control and not of market design. Consumers reflexively benefit from effective competition for it leads to low prices, product variety, high quality and innovation. This is as true for sustainable and environmentally friendly products as it is for any other product category… Purely political sustainability considerations, which cannot be assessed using competition law categories, should not find their way into merger control. Such an examination would carry a great risk of being discretionary (Studienvereinigung, p. 17, 19). It is generally true that consumer welfare does contain and take into account a variety of values that it can optimise, unless these values are protected by direct public instruments outside the market. Because if consumers internalize these values, they are also willing to pay for them. But if such normative values are imposed on consumers against their will in the market, it means that someone else knows better than they do what the market should properly look like which is … “the opposite of what competition is supposed to do. Ultimately, antitrust authorities could become subject to undue influence by political stakeholders. This could eventually undermine their role as impartial competition watchdogs” (Thomas 2021b, p. 10). So that even environmental issues and other considerations related to “sustainability” could therefore also play an important role in competition law, but without weakening the current mechanisms in terms of clarity and predictability through the addition of further, partly political, categories (Dreyer, Ahlenstiel, p. 81). Competition authorities are busy enough with the protection of competition and it is questionable whether they can at all intervene (not only formally in terms of remit but also substantively and with their professional staff) in environmental protection and other matters of general welfare (Mayer, p. 259). We can also encounter a broader than narrowly ecological concept of sustainability, which is even harder to operationalise, e.g., in addition to the environmental issues, the progressive Dutch Competition Authority includes biodiversity, health, animal welfare, fair trade, fair working conditions including the protection of child labour and the right to form trade unions and human rights among its sustainability objectives (ACM Guidelines). This is clearly an over-ambitious goal, which places demands on the Authority at the level of the government or perhaps a modern-day “Committee for the Public Good”, but certainly higher than is desirable.

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