Julian Nowag
Universitetslektor
Sustainability and Competition
Författare
Summary, in English
Sustainability has been on the agenda of international organisations, states and, increasingly, private
businesses for some time. From a competition agency perspective, regulation to achieve sustainability
might be the preferred option. Yet, business action might equally affect sustainability and competition and
competition laws are crucial considerations for businesses. Occasionally, the debate is unhelpfully reduced to the question of competition vs sustainability as public
policy. Such a simplified view of the debate obscures the matter leading to competition law and competition
authorities being seen as obstructive and out of touch with realities. To further a constructive debate, this
paper maps out the issue and identifies more and less controversial issues in the concrete application of
competition law in a sustainability context. The paper explores the concept of sustainability and its genesis in the internal arena and explains its three
components: the environmental, the economic, and the social. The paper then explores the normative
questions of whether competition law should take sustainability into account, exploring, in particular,
international law and domestic constitutional requirements. The more technical part of the paper provides some basic background on the economics of competition
and sustainability highlighting how the protection of competition, consumer welfare, and sustainability
overlap. It explores in more detail the substantive competition law questions identifying the areas where
consensus exists and those that are more contentious. This subdivided section first shows how competition
authorities can foster sustainability by targeted enforcement where anticompetitive practices are similarly
detrimental from a sustainability perspective as, for example, in cases where cartels prevent consumers
from buying sustainable products. Similar active engagement in support of sustainability can be achieved
the use of more dynamic theories of harm that protect sustainability innovation. It also shows that the
debate arises as to how far dynamic innovation theories might be pushed and whether a focus on
exploitative abuses to protect the social dimension of sustainability, namely poverty, can be justified. In its second part, the paper illustrates the interaction of competition law and business activities where
business wants to move into a more sustainable direction. Less conscious areas are different forms of
exclusions from the scope of competition or the balancing between sustainability and competition where a
jurisdiction’s competition law includes a general public interest exception. The area where more debate
takes place is balancing within the established economic frameworks of consumer welfare and efficiency.
Yet, the paper highlights that sustainability can readily fit within this framework as a quality parameter and
that more contentious questions relating to questions of how far the dynamic nature of sustainability can
be pushed in particular by taking into account benefits in the future or in other markets. Finally, the paper emphasises the importance of agency objectives and priority setting and formal and
informal guidance. It also touches upon questions of approval procedures, sandboxing, admissible
evidence, capacity, fining, and international co-operation. Overall, the paper shows that many OECD countries are already considering sustainability matters within
their enforcement practice, whether they do so knowingly or unknowingly.
businesses for some time. From a competition agency perspective, regulation to achieve sustainability
might be the preferred option. Yet, business action might equally affect sustainability and competition and
competition laws are crucial considerations for businesses. Occasionally, the debate is unhelpfully reduced to the question of competition vs sustainability as public
policy. Such a simplified view of the debate obscures the matter leading to competition law and competition
authorities being seen as obstructive and out of touch with realities. To further a constructive debate, this
paper maps out the issue and identifies more and less controversial issues in the concrete application of
competition law in a sustainability context. The paper explores the concept of sustainability and its genesis in the internal arena and explains its three
components: the environmental, the economic, and the social. The paper then explores the normative
questions of whether competition law should take sustainability into account, exploring, in particular,
international law and domestic constitutional requirements. The more technical part of the paper provides some basic background on the economics of competition
and sustainability highlighting how the protection of competition, consumer welfare, and sustainability
overlap. It explores in more detail the substantive competition law questions identifying the areas where
consensus exists and those that are more contentious. This subdivided section first shows how competition
authorities can foster sustainability by targeted enforcement where anticompetitive practices are similarly
detrimental from a sustainability perspective as, for example, in cases where cartels prevent consumers
from buying sustainable products. Similar active engagement in support of sustainability can be achieved
the use of more dynamic theories of harm that protect sustainability innovation. It also shows that the
debate arises as to how far dynamic innovation theories might be pushed and whether a focus on
exploitative abuses to protect the social dimension of sustainability, namely poverty, can be justified. In its second part, the paper illustrates the interaction of competition law and business activities where
business wants to move into a more sustainable direction. Less conscious areas are different forms of
exclusions from the scope of competition or the balancing between sustainability and competition where a
jurisdiction’s competition law includes a general public interest exception. The area where more debate
takes place is balancing within the established economic frameworks of consumer welfare and efficiency.
Yet, the paper highlights that sustainability can readily fit within this framework as a quality parameter and
that more contentious questions relating to questions of how far the dynamic nature of sustainability can
be pushed in particular by taking into account benefits in the future or in other markets. Finally, the paper emphasises the importance of agency objectives and priority setting and formal and
informal guidance. It also touches upon questions of approval procedures, sandboxing, admissible
evidence, capacity, fining, and international co-operation. Overall, the paper shows that many OECD countries are already considering sustainability matters within
their enforcement practice, whether they do so knowingly or unknowingly.
Avdelning/ar
- Miljörätt
- Juridiska institutionen
Publiceringsår
2020
Språk
Engelska
Publikation/Tidskrift/Serie
OECD Competition Committee Discussion Paper
Länkar
Dokumenttyp
Rapport
Förlag
OECD Publishing
Ämne
- Law
Nyckelord
- Sustainablity
- Antitrust law
- Competition law
Aktiv
Published
Forskningsgrupp
- Environmental Law