Unmuting the environment in EU competition law – Broadening the notion of “fair share to consumers” when assessing sustainable cooperation initiatives

Buytaert, Tom
(2025) Standing Up for the Voiceless? Exploring the EU’s Capacity for Rights Protection — ISBN: [978-2-8028-0540-3], 42-72

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Competition policy may in some instances hinder positive cooperation initiatives between competitors in the context of climate change. This “antitrust issue”, i.e. the Commission’s strict application of the “fair share to consumers” condition under Article 101 TFEU, arguably results in “muting” the environment or future generations as well as stakeholders of global value chains, who are not always the direct consumers of the products concerned. The Commission under the Green Deal revised its applicable guidelines, adding a new chapter on “sustainability agreements”, which marks a positive but modest development, as this new instrument does not fully consider collective environmental benefits of such agreements. The paper also analyses national, more ambitious solutions found in the Netherlands, Austria and the United Kingdom as possible alternatives or sources of inspiration. Such broader approach regarding environmental issues is not precluded by the CJEU case-law and may even be required in light of the EU “constitutional” context. Further change might also prove necessary to enable companies to comply with their new obligations to cooperate under the CSDDD.
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Buytaert, T. (2025). Unmuting the environment in EU competition law – Broadening the notion of “fair share to consumers” when assessing sustainable cooperation initiatives. In Denis Duez; Cecilia Rizcallah (ed.), Standing Up for the Voiceless? Exploring the EU’s Capacity for Rights Protection (pp. 42-72). Presses universitaires Saint-Louis. https://doi.org/10.4000/147v4