Competition Law, Climate Change & Environmental Sustainability, Simon HOLMES, Dirk MIDDELSCHULTE and Martijn SNOEP

Simon Holmes, Dirk Middelschulte, Martijn Snoep

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

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This book deals with one of the most topical and important issues of the coming decades for the world’s population: climate change. It is therefore not surprising that some fifty authors from different continents and countries have jointly devoted themselves to this subject. The authors brilliantly demonstrate the links between climate change and competition law, clarifying how the latter can contribute to solving the resulting problems and advancing sustainable development.

Structured in four parts, this book covers a wide range of topics and viewpoints. The authors examine the main legal issues, industry perspectives, the views of competition authority representatives and finally offer alternative perspectives. The legal issues in the first part are organized around the main topics of competition law (cartels, abuse of dominance, merger control, state aid, and public procurement), with an emphasis on the former. The second part is devoted to the specificities of the automotive and transport sectors, banking and finance, consumer goods, energy, the food supply chain and industrial products. In the third part, the authors present the various perspectives adopted by the Dutch, Australian, European, French, Greek, South African and English competition authorities and explain how they are addressing the challenges posed by climate change. Finally, the fourth part offers alternative perspectives to those presented so far.

This book comes at a pivotal moment in challenging the traditional doctrine of "non-economic" policy factors in competition law. It follows on from Mr Guterres’ call for all sectors of society and the economy to take action to combat climate change, and the Commission’s Green Deal, arguing for deeply transformative policies.

Several authors argue that a radical change from the interpretation of Article 101 TFEU is not necessary, as environmental benefits can be included in consumer welfare. On the other hand, it seems unlikely that Article 102 TFEU can be extended to assert an abuse of sustainable development as such. In the context of state aid, the authors discuss the role of economic and financial analysis in supporting a cost-effective transition to carbon neutrality. Indeed, they note that the Covid-19 crisis has most recently demonstrated the need for rapid action and prioritisation, with the consequence that the Commission’s procedure and scrutiny should be reoriented to place environmental considerations ahead of the many other policy objectives that the state aid regime must currently serve. Merger control is a less flexible tool for promoting environmental progress than antitrust and state aid, but players could be encouraged to propose mergers motivated by sustainable development objectives or there could be more sustainability in the SIEC test. The banking and finance sector plays an important role in allocating capital to more sustainable technologies. To achieve this, companies need to work together, but they also need to be able to rely on the willingness of Member States to adopt policies and make the necessary financial investments to make this greener vision a reality.

As urgent as the issue is, however, the authors point to the potential dangers of adapting competition policy to environmental factors. In particular, they mention "greenwashing cartels" or the risk of governments using corporate self-regulation as an excuse for not establishing appropriate regulation themselves.

Industry players agree that companies want to engage, but that the legal environment remains very unclear. They hope to receive guidance and support from the competition authorities to ensure compliance with competition law. In addition, they are concerned about international impacts. As the current discussions on sustainable development are mainly taking place within the European Union, they see some risk that projects allowed in the EU will be banned elsewhere.

Representatives of national competition authorities share the same sense of urgency as practitioners. The question most discussed in the third part is whether, when the law does not require the consideration of sustainability effects, it allows the authority to do so nonetheless. Finally, in the fourth part, alternative views are expressed, for example to show that an avoidance of green measures could constitute an abuse of dominant position, or to explain that companies should advise their clients not in the safest direction but in the right direction.

The analysis of the problem and the range of solutions proposed are particularly comprehensive, as all areas of competition law are covered. The impacts in the most important industrial sectors are illustrated and the perspectives of many national representatives of competition authorities are presented. This book is a must for any lawyer, economist, political scientist or, more broadly, anyone interested in sustainable development.

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  • University of Paris I Panthéon-Sorbonne

Quotation

Rebekka Schlieper, Competition Law, Climate Change & Environmental Sustainability, Simon HOLMES, Dirk MIDDELSCHULTE and Martijn SNOEP, September 2021, Concurrences N° 3-2021, Art. N° 101675, pp. 260

Publisher Concurrences

Date 26 March 2021

Number of pages 496

ISBN 978-1-939007-72-8

Visites 693

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