Verticale duurzaamheidsovereenkomsten – Een beoordeling van de grenzen en mogelijkheden voor duurzame toeleveringsketens onder het EU-mededingingsrecht

The economic landscape of distribution is evolving rapidly, driven in large part by the ongoing ecological transition. This shift is having a significant impact on vertical agreements—contracts between companies operating at different levels of the production or distribution chain. Increasingly, retailers are requiring that the products they distribute meet specific environmental standards. Similarly, suppliers are imposing sustainability-related obligations on their downstream distributors. On the legislative front, the European Green Deal and related initiatives emphasize the need to uphold environmental sustainability across the entire supply chain and the EU introduced a host of legislative initiatives to achieve sustainable supply chains, such as the Corporate Sustainability Due Diligence Directive. However, these efforts to foster cooperation, coordination, and information-sharing around sustainability raise important questions under EU competition law. Vertical agreements, including those aimed at achieving environmental goals, fall within the scope of competition regulation, posing potential legal challenges. Undertakings, National Competition Authorities, and other stakeholders increasingly call for greater legal certainty and, in many cases, a more accommodating approach toward sustainability agreements. An extensive body of literature has emerged in the area of horizontal sustainability agreements, and the EC has taken initial steps to clarify and relax the regulatory framework. However, vertical sustainability agreements remain largely unexamined, both in academic discourse and in the European Commission's actions. This thesis seeks to address this gap by examining whether the current EU legal framework governing vertical agreements is fit for an environmentally sustainable economy. Excluding the introduction and conclusion, this thesis is structured into three main parts. The first part, titled 'Vertical Agreements and the Ecological Transition,' begins with a conceptual chapter that contextualizes the topic and establishes key working definitions. This is followed by a chapter exploring the evolution of the objectives of EU competition law. In this part, the thesis argues that the distinction between the frameworks for horizontal and vertical agreements is less clear-cut than it might initially appear, advocates for a more holistic approach to EU competition law objectives, and proposes a polycentric approach to competition law, serving as a normative framework that integrates competition law with other regulatory objectives, such as sustainability, to achieve a holistic alignment of economic and environmental values. The second part, titled 'Vertical Sustainability Agreements under Article 101 TFEU,' explores the application of Article 101 TFEU to vertical sustainability agreements. It begins with a chapter on the prohibition of anti-competitive agreements, which includes a discussion of the distinction between restrictions by object and by effect, an analysis of the Wouters case law, and an argument for the transposability of horizontal sustainability guidance to vertical sustainability agreements. This is followed by a chapter addressing the exemption criteria under Article 101(3) TFEU, which advocates for a reform of the current approach to more effectively incorporate sustainability considerations. Another chapter examines the block exemption regulations, concluding that while the Vertical Block Exemption Regulation provides significant protection for vertical sustainability agreements, certain ambiguities — particularly regarding selective distribution and resale price maintenance — continue to hinder the adoption of sustainability-oriented agreements. The section concludes with a proposal for a multi-level strategy aimed at improving the legal framework to enhance legal certainty, ensure greater coherence, and better support the transition to an environmentally sustainable economy. The third and final part, titled 'Vertical Sustainability Agreements Beyond Article 101 TFEU,' comprises two chapters. The first examines the Corporate Sustainability Due Diligence Directive, concluding that the relationship between the CSDDD and Article 101 TFEU remains ambiguous, particularly concerning information exchange between undertakings. The second chapter analyzes the European Commission's policy priorities and enforcement mechanisms, including inapplicability decisions, commitment decisions, guidance letters, comfort letters, and prioritization practices. It highlights the disconnect between the formal legal weight of these tools and their practical application.