EU Competition Policy and the Environment : The Role of Environmental considerations under Article 101 TFEU

University essay from Uppsala universitet/Juridiska institutionen

Abstract: The role of private market actors and competition in combating environmental problems is a highly relevant topic for the coming decades. While environmental cooperation between market actors may promote environmental policy objectives, such cooperation may also raise concerns from a competition policy perspective. This thesis therefore aims to examine the role of environmental considerations in the assessment of anticompetitive cooperation between undertakings under Article 101 TFEU. The conclusion of this thesis is that EU environmental policy and competition policy has become increasingly intertwined in the recent decades. Nevertheless, it remains uncertain whether environmental considerations may play a role under Article 101 TFEU. On one hand, the EU courts have yet not ruled on this matter. On the other hand, the Commission seems to have taken environmental considerations into account in the past, but has, in recent years, changed its approach and now rejects the relevance of other objectives than achieving efficiency (i.e. ‘consumer welfare’) under Article 101 TFEU. The author has however argued that a systematic and teleological interpretation of the EU Treaties and Article 101 TFEU provides that environmental considerations must, in deed, be integrated into the assessment under Article 101 TFEU. Such an interpretation is motivated, in particular, because the integration principle in Article 11 TFEU requires that ‘environmental requirements’ must be integrated into other EU policy areas. As to the legal meaning of the integration principle, the CJEU has confirmed that the principle may affect the interpretation of EU law, even outside the field of environmental policy. The integration principle does, however, not provide clear guidance on how to integrate environmental considerations into other EU policy areas. Therefore, the author has proposed ‘The Integration Model’ as a model for integrating such considerations into the assessment under Article 101 TFEU. The model is based on a number of considerations, including an interpretation of the integration principle and the observations that environmental degradation may be described as an efficiency problem and that environmental resources may be economically valued. In short, this model means that where an agreement restricts competition, within the meaning of Article 101.1 TFEU, but promotes environmental objectives, as defined in the EU Treaties, the environmental benefits generated by that agreement, after being transformed into economic terms, must be taken into account in the assessment under Article 101.3 TFEU.

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