Competition law and sustainability in horizontal agreements: complex boundaries

Abstract This article explores the interaction between competition law and policy and sustainability. It first charts recent developments, which have revitalized an old debate of whether sustainability should play a role in competition law and policy. With a view mainly to the new EC Horizontal Guidelines (2023) this article then examines the normative questions and sheds light on specific legal challenges arising from this interaction like to what extent and under which methodological route should sustainability-agreements fall into the scope of Article 101(3) Treaty on the Functioning of the European Union (TFEU), which provides a ‘legal exception’ to the prohibition in Article 101(1). This article also focuses on specific issues regarding the evaluation of sustainability agreements, such as the meaning of the ‘fair share’ criterion and the different types of consumer benefits resulting from sustainability agreements. This article also emphasizes the special role that sustainability agreements are expected to have in energy markets. In light of the growing consensus that competition authorities have a key role to play in fostering sustainable development, the analysis draws insights deriving from a comparison with the initiatives taken at the national level by some competition authorities, notably the The Netherlands Authority for Consumers and Markets (ACM) in the Netherlands, the Austrian Federal Competition Authority, and the CMA in the UK.