Beyond Balancing: Sustainability and Competition

Abstract

This paper explores ways for EU competition law, and in particular Article 101, to comply with the obligation of Article 11 TFEU which demands the integration of sustainablity considerations. It highlights that while the main debate often concerns the balancing between sustainability and competition other important elements may be overlooked. This paper outlines and briefly accounts for such alternatives in EU competition law that do not require a form of balancing by the competent competition authority or court.
The paper first highlights questions of balancing and other forms of ensuring compliance of competition law with Article 11 TFEU. Then, it outlines a number of options that allow companies to comply with competition law without the need for balancing. These different options are sorted by the level of flexibility offered. It first explores options that offer less room to manoeuvre then it examines those that offer more flexibility and some that seem to push the limits of traditional competition law though innovative business models.

Keywords: EU competition law. sustainablity, balancing, scope, Article 101 TFEU, agreements, integration