(K-)Ein Kartellprivileg für den Umweltschutz? ((No) Antitrust Privilege for Enviromental Protection Agreements?)
Umweltschutz als Rechtsprivileg, pp. 127-180, Michael Kloepfer, ed., Duncker & Humblot, 2014
Posted: 19 Aug 2013 Last revised: 23 Nov 2016
Date Written: April 30, 2013
The paper deals with the question whether the effective operation of environmental protection provisions through the cooperation between undertakings requires broader antitrust exemptions than those provided for by the competition rules of the Treaty on the Functioning of the European Union (TFEU) and the German Act Against Restraints of Competition (ARC) or calls for even complete antitrust immunity.
The analysis of European and German antitrust rules including the relevant case law leads to the result that cooperation between competing undertakings for the purpose of environmental protection may only be legally practiced within the limits set up by the competition rules of the TFEU and the ARC for such cooperation. Undertakings cooperating in the sector of environmental protection either have to refrain from anti-competitive agreements or they have to make sure that agreements with anti-competitive clauses are covered by an exemption under Art. 101 § 3 TFEU or § 2 ARC or, respectively, fall within the ambit of a block exemption regulation.
In adopting environmental protection laws, the EU member states are indirectly bound by the competition rules of the Treaty which are in the first instance directed at undertakings. According to case law of the ECJ, member states must not adopt or maintain in force measures that affect the effectiveness (effet utile) of the competition rules of the TFEU.
The practical experience in applying competition rules to agreements and unilateral behaviour in the field of environmental protection, like, e.g. in the case of "Duales System Deutschland" (a company running a system for the collection of packaging, glass and paper waste in Germany) through the European Commission and the German Bundeskartellamt (Federal Cartel Office – FCO), clearly demonstrates the cost-reducing and efficiency-enhancing effect of economic competition within the field of environmental protection.
As shown by the pertinent European and German case law, the exemption provisions of Article 101 § 3 TFEU and § 2 ARC allow for a fully adequate consideration of environmental concerns in antitrust law. The case practice of the Commission and the FCO demonstrates that these rules are flexible and broad enough to safeguard the interests of the environment without compromising the proper functioning of economic competition. Further antitrust exemptions in favor of environmental protection are not necessary.
In addition, the paper deals with environmental concerns in European state aid law and in the provisions governing public procurement.
Note: Downloadable document is in German.
Keywords: Environmental protection provisions, Treaty on the Functioning of the European Union (TFEU), German Act Against Restraints of Competition (ARC), antitrust law, environmental protection laws, European competition rules
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