Sustainability Dimension in the application of Article 102 TFEU: A Lack of Will or 'Wonderland'?

Abstract: The consideration of sustainability issues in different fields of law is increasing due to the urgent call for climate change after the year 2015, with the adoption of widely known sustainable development goals. As a consequence of the European Green Deal, EU competition law has started to play its role for the sustainable future. The possible application of Article 102 TFEU as a ‘sword’ to attack unsustainable business practices is one of the discussion topics in this field despite the underestimation at practical and academic levels. This thesis mainly aims to analyse the genuine possibilities of the application of Article 102 TFEU to tackle unsustainable conduct. According to the given hypothesis, the legal basis as well as the goals of competition law are considered to some extent for the assessment of the mentioned application of Article 102. To emphasize the significance related to the applicability of Article 102 towards unsustainable conduct, and subsequent required assessments, the relationship between dominance and unsustainable business practices are scrutinized by using the results of exercise conducted by researchers in this field. For the substantive assessment concerning unsustainable business practices, the concept of abuse and other major concepts such as competition on the merits, more economic approach and others that could be essential for the examination, are discussed and assessed in terms of their utilization for the evaluation of abuse. Consequently, two available directions are considered for the possible assessment of unsustainable conduct as abuses under Article 102 TFEU. Relevantly, the last chapter of the discussion part of the thesis contains information about the positions of different competition authorities towards the possible use of Article 102 for sustainability considerations by comparing various perspectives and initiatives between the application of Article 101 and Article 102. Additionally, that chapter defines the current challenge by evaluating the mentioned perspectives from competition authorities and gives some suggestions for the initial steps towards the consideration of Article 102 as a ‘sword’ for unsustainable business practices. As a final result of the research, it turns out that there is a real possibility for applying Article 102 TFEU to attack unsustainable business practices. However, it is emphasized that this potential application requires a deep and broad understanding of competition law and policy, including the goals of competition law, as well as the improvements in the economic, and legal tests used for the assessment of abusive conduct are necessary. It seems that more comprehensive research and willingness towards this topic can be a solution to the many problems in future.