Competition and Environment: Conflict or Confluence? Some reflections on sustainability agreements under Article 101(3) of the TFEU

The article is based on an analysis of Article 101 of the Treaty on the Functioning of the European Union (TFEU). This provision sets out the general rule of the prohibition of agreements between companies that may distort competition, with an exception for agreements that contribute to improving the production of products. The author, based on international and European provisions, proposes an interpretation of ‘production improvement’ also in an environmental sense. This interpretation could justify agreements between companies that, while contrary to the application of competition principles, move towards sustainable production (so-called sustainability agreements), even if they do not reflect the application of the competition principle. The competition principle emerges clearly in the Italian Environmental Code and is applied in waste regulation and Extended Producer Responsibility (EPR) systems. The author believes that this principle, on the one hand, is crucial to encourage sustainable production and economic efficiency but, on the other hand, should not be considered an absolute principle. Indeed, sustainable production requires exceptions to the principle itself, but only to the strict extent necessary.