Sustainability considerations in antitrust law practice

Sustainability considerations now also play an important role in connection with antitrust issues. Many competition authorities, in particular, the European Commission (Commission), but also national competition authorities, such as the UK Competition and Markets Authority (CMA), the Dutch Autoriteit Consument & Market (ACM) and the Austrian Federal Competition Authority (BWB), have published guidelines on the consideration of sustainability objectives. Other antitrust authorities, such as the German Federal Cartel Office, have declared their willingness to prioritise sustainability agreements at least in certain areas that are important for sustainable consumption, such as the (food) retail sector.

Sustainability considerations are particularly important when reviewing co-operations and enforcing the prohibition of cartels, but also in merger control.

In the area of merger control, it is noticeable that sustainability is increasingly being viewed as a non-price competition parameter when defining the relevant product and geographic market. It is also seen as one of the factors for assessing the proximity between the merging companies and their competitors. This means that consumer preference for environmentally friendly products and the ability of suppliers to produce sustainable goods significantly influence the merger control assessment of concentrations. The current legal framework also allows the Commission to recognise sustainability-related improvements as an efficiency factor in merger assessments. Thus, for example, sustainability considerations can be taken into account in the development of technical and economic progress, provided that this serves the consumer and does not hinder competition (Art. 2 para. 1 EU Merger Regulation – Merger Regulation). The Commission’s Horizontal Guidelines on mergers further specify this efficiency defence, which is provided for in Recital 29 of the Merger Regulation, and require the notifying parties to provide evidence of an advantage for consumers, merger-specific efficiency benefits and their verifiability in order to be accepted.