ESG Data and EU Competition Enforcement: From ‘Green’ to ‘Digital’ Antitrust in Sustainable Markets

This study questions how ESG data arrangements among businesses, currently advanced by the European ESG regulations, stand to currently evolving European competition policy, as moved by the recalled “twin enforcement transition”. The analysis takes the emerging market of ESG data as a use case so as to contribute to the current evolutive perspectives of European competition enforcement vis à vis consolidating sustainability interests at several levels. First of all, the case of ESG data markets opens up new prospects for reflections about the interplay between European competition enforcement and its interaction with public ex ante regulation in the field of European sustainable markets: while European regulators are demanding the disclosure and the free circulation of ESG related data, the question arises whether these disclosure obligations are in contrast or align with competition enforcement objectives. In second stance, in respect to the possible patterns to “greening” competition law, the evaluation of ESG-data related exchanges under the new guidelines for horizontal cooperation sheds further light over the still persisting uncertainties of qualifying an agreement as pro-sustainable in derogation to the traditional opposition towards horizontal agreements. Third, the consideration of ESG-related data markets’ potential treatment under the European competition framework proves relevant to identify some prospective synergies between the seemingly separate policy realms of sustainable and digital competition