KONKURRENSBEGRÄNSANDE MILJÖAVTAL ENLIGT ARTIKEL 101 I FÖRDRAGET OM EUROPEISKA UNIONENS FUNKTIONSSÄTT

Sammanfattning: Summary Potentially one of the greatest environmental policy challenges in the European Union is the question of how to efficiently and effectively achieve environmental goals through which society can correct for and obtain a level of sustainable development. The trend has gone from one of command and control legislation towards using more market-based instruments that seek to involve the different market participants in the environmental process. The aim being to achieve a more efficient use of society’s environmental resources through the use of voluntary measures to obtain sustainable development. This is based on the Polluter Pays Principle and that the costs associated with environmental degradation (negative externalities) should be borne by the undertakings responsible for those costs, in an attempt to overcome the inefficient use of environmental resources in the free market economy. One such market-based environmental policy instrument that has been used more frequently is that of horizontal cooperation agreements in an environmental context. This use of commercial agreements as an environmental policy instrument has, however, led to situations where such agreements have been concluded by market participants with either an anti-competitive object in mind or where such competitive restriction has been the effect of the agreement; which has raised antitrust issues based on the EU's prohibition on anti-competitive agreements and concerted practices under Article 101 of the Treaty on the Functioning of the European Union (TFEU). It has therefore been relevant to investigate the relationship that exists between the environmental policy use of horizontal cooperation agreements in an environmental context on the one hand, and how such agreements may be affected by the assessment of competition law on the other. This thesis has been undertaken by examining the way in which the prohibition in Article 101(1) TFEU has been applied to horizontal cooperation agreements in an environmental context, and under what conditions an exemption may be granted under Article 101(3) TFEU. The specific questions underlying the thesis have been; under what conditions are horizontal cooperation agreements in an environmental context covered by the prohibition on anti-competitive agreements and concerted practices in Article 101(1) TFEU? What grounds exist for such an environmental agreement to be exempted from the prohibition under Article 101(3) TFEU? Does the application of Article 101 TFEU take into account any underlying environmental policy issues that have brought about the use of the horizontal cooperation agreements in an environmental context in the first place or is the focus one more geared towards the application of the prohibition on anti-competitive agreements and concerted practices from an economic point of view? If, in the application of Article 101 TFEU, there is a conflict between environmental issues raised by the use of a horizontal cooperation agreements and the competition interest of maintaining effective competition, is there any legal basis for a preference towards one or the other policy? The analysis has shown that horizontal cooperation agreements in an environmental context can be divided into three groups (by content, object or effect), where the first group represents such agreements that are not covered by the prohibition, the second contains borderline agreements that may be prohibited based on their content and the third represents agreements that are by their very nature almost always prohibited. Which group an agreement belongs to depends on the manner in which the agreement has an appreciable adverse effect on competition and consumer welfare. Horizontal cooperation agreements in an environmental context are prohibited in accordance with Article 101(1) TFEU if they confer an appreciable adverse impact on one of the market's fundamental competitive parameters by either their object or effect which results in an unlawful restriction of competition on the common market. The specific conditions of the agreement and the relevant market together with the market shares of the parties involved form part of the assessment. Generally speaking, the less restrictive an agreement is towards how it determines the actions of the parties involved, the less likely an agreement is to be prohibited under the Article. If an agreement allows for independent action based on a general consensus to meet certain generally set goals, then it is less likely to be restrictive of competition, when compared to an agreement, that in detail provides for a list of measures and means with which to meet certain specified direct goals that leave very little room for the participants to act freely. Micromanagement within an agreement removes the participants’ autonomy, which in the context of the Article, is seen as likely to lead to either less competition or anti-competitive behaviour (to the detriment of consumer welfare and competition on the market). Environmental agreements may not, for example, involve measures aimed at price fixing, the limiting of output, product deterioration, measures that are likely to lead to an abatement of innovation or development on the market. Any agreement that is likely to lead to a barrier to entry on the market for competitors is also seen as likely to be anti-competitive, which would lead to a prohibition in line with Article 101(1) TFEU. If the agreement seeks by object or causes by effect an appreciable restriction of competition, then the agreement or relevant provision is prohibited, whereby an exemption must be sought if the agreement is to have any legal effect. There are four cumulative requirements that must all be met for an exemption to be granted. It is only during the assessment of whether the agreement fulfils these requirements that any balancing of positive versus negative effects the agreement might have or entail as a whole can be considered (for example whether an agreement leads to significant environmental or economic benefits). This balancing seeks to address the negative effect on competition that an exemption may be seen to cause and any exempted agreement must at the very least not leave the consumer worse off than compared to a situation where there was no agreement at all. The general requirements for an exemption under Article 101(3) TFEU are that the agreement must entail, in part, economic benefits (as exemplified by net benefits of reduced environmental pollution as a result of the agreement, in the environmental context); the consumer must have a positive rate of return (the benefit must outweigh the cost to the consumer, or at the very least, have a neutral value); the restriction must be indispensable (any restriction caused by the agreement must be essential to achieving the aims of the agreement and proportional to the restrictive effect caused); the agreement must not eliminate competition on the relevant market. Regardless of any environmental improvement an agreement might entail, if it eliminates competition, it can not be exempted (as any benefits are cancelled out by the long term effects to the market without competitive forces being present). Environmental agreements are based on environmental policy considerations, while the assessment under competition law for Article 101 TFEU is based on the economic factors of competition (an economic analysis of the effects the restriction of competition will have on the market and how this in turn effects consumer welfare). As the starting points for assessment are different, so are the points of focus for what is important. That said, it has been shown during the analysis of relevant cases that the European Commission does place value on and take into account environmental considerations during the assessment for exemption (especially in the CECED and DSD cases). The mere fact that an agreement’s underlying purpose may be environmental in nature (aimed at improving environmental values) is not, however, in and of itself grounds for an exemption, as the cumulative requirements for an exemption must all still be met. If an agreement has been prohibited then that was because of the appreciable effect it had on competition and those issues must still be addressed for any possibility of an exemption. The European Commission does, however, factor in environmental benefits as economic benefits to the extent that they can be economically quantified to represent economic values and subsumed by the relevant requirements for exemption, by which an assessment can be made (either as a cost benefit or as represented by new and improved products). As regards to any preference shown for one policy or the other, when there is a conflict between the two (environmental policy versus competition policy), the assessment must be based on a teleological interpretation of the system of the Treaties; which, when viewed from Article 3(3) TEU, Article 7 TFEU and Article 11 TFEU (the integration principle) can be taken to mean a positive interpretation for environmental concerns aimed at achieving sustainable development. If there is a conflict and the area of conflict is not sufficiently clear and precise, so that there is room open for interpretation, then such an interpretation must favour the environment. That said, in regard to the requirements for exemption under Article 101(3) TFEU, the wording is very clear on the issue that there must be residual competition for an exemption to apply. So in that final regard, so long as competition remains, then environmental concerns can be favoured in what is essentially an economic assessment of the positive and negative effects of a horizontal cooperation agreement in an environmental context.