EU Competition Law and Environmental Protection - Integrate or Isolate?

Sammanfattning: The European Commission has, in recent years, adopted an economic, consumer welfare-driven approach in its competition policy. Since the “modernisation” of the European competition law in 2004, the Commission has stated that “objective economic benefits” are necessary for the exemption in Article 101(3) TFEU to apply. While the Commission in the past may have taken environmental consideration into account in its competitive assessments, economic efficiency has become the paramount goal of EU competition policy. It may seem like decision-makers no longer are able to consider non-economic concerns when assessing anti-competitive agreements. Meanwhile, environmental law academics stress the importance of “market-based instruments” and the need for private cooperation to combat environmental decay. An increasing number of firms seek to do business in a way that minimises their environmental impact. Often, such initiatives require a certain degree of collaboration. The scope of Article 101(3) TFEU becomes highly relevant when companies enter into voluntary environmental agreements, which are restrictive of competition, but also carries great environmental benefits. Companies that cooperate to reduce their environmental pressure run the risk of violating Article 101 TFEU. However, the case law of the EU courts, as well as the decisional practice of the Commission, does not fully support the Commission’s new approach. The Treaties demand that the Union strive towards a sustainable development and a high level of environmental protection. Traditionally, the EU courts have used a teleological interpretation method when analysing the provisions in the Treaties. It can be argued that the founding Treaties should be viewed as forming a coherent system. When the wording of Treaty statutes is vague enough to be open to interpretation, they should be interpreted as to help EU’s overarching policy objectives. Article 101 TFEU is open to interpretation and allows for the Treaties’ environmental goals to be taken into account. It can also be argued that it is economically rational to integrate environmental concerns into the competitive assessment. According to neoclassic economic theory, competition gives rise to “external effects” that must be internalised if society’s resources are to be efficiently allocated. Even if we accept the notion that only “objective economic benefits” may satisfy Article 101(3) TFEU, neoclassic environmental economic theory suggests that environmental benefits can constitute just that. This thesis concludes that the constitutional structure of the Treaties demands that environmental concerns are to be taken into account under Article 101 TFEU. This thesis further argues that Article 101(1) TFEU should entail a consumer welfare test on the relevant market. Environmental benefits should be taken fully into account under Article 101(3) TFEU. The aggregated positive and negative effects to society as a whole are considered in this assessment. Environmental benefits should be relevant in Article 101(3) TFEU even if they cannot be calculated into “objective economic benefits”.