Abstract
Across every continent, climate change is the crisis of our time. The European Green Deal makes 'sustainability and competition law' one of the most discussed topics in the EU right now. This chapter explores the interaction between competition law and sustainability in the EU in a historical context that includes 'competition law as a shield' and 'competition law as a sword' perspectives. While the European Commission may have indicated its intention to pursue more sustainable competitive practices, it has not yet explicitly expressed a position (except in its policy brief). This chapter charts trailblazing national initiatives being proposed by the EU.
TopIntroduction
A crisis of our time, climate change affects every country on every continent(Vedder, 2000). In 2015, the United Nations General Assembly adopted the 2030 Agenda for Sustainable Development (including its 17 Sustainable Development Goals, SDGs), which provides a shared plan of action for people, the planet, and prosperity that will guide all countries policies towards sustainable development until 2030. Through appropriate financial flows, a revised technology framework, and a strengthened capacity-building framework, the Paris Agreement also seeks to strengthen the global response to climate change. In response to these international commitments, the EU launched its European Green Deal, an integral part of the Commission's strategy for implementing the United Nations' 2030 Agenda, particularly the SDGs(Monti & Mulder, 2017). Competition law discussions about sustainability have not received much attention until recently, particularly in light of the European Green Deal. European Green Deal, launched in December 2019, seeks to make Europe the first carbon-neutral continent by 2050 by setting a plan for sustainable economic growth based on environmental and social priorities, decarbonizing not only electricity but buildings, transportation, agriculture, and industry. Since the European Green Deal, the European Commission has also instigated debates on greening competition law and policy. This is how competition policy can support the EU’s focus on sustainability and progression towards climate neutrality by 2050.
Vestager noted in her recent Keynote that 'green policies like regulations, taxes, and investments are the key to the Green Deal. With so much to do in such a short time, everyone - including competition enforcers - needs to ensure they are doing their part. This message suggests an 'all-hands-on-deck' approach, implying that competition law also plays a role. Even though the message here is clear that competition law is not the main tool for tackling climate change issues, it can nevertheless play a role, perhaps more than just supporting, in achieving green policy objectives. The European Commission has conducted several public consultations. As a matter of fact, in the Better Regulation consultation, there is an assessment of competition rules regarding horizontal agreements (Commission Regulations (EU) No 1217/2010 (Research & Development Block Exemption Regulation) and 1218/2010 (Specialisation Block Exemption Regulation), commonly known as the horizontal block exemption regulations (HBERs) (Monti & Mulder, 2017).
Key Terms in this Chapter
Prevention: The concept of prevention can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, licensing or authorization that set out the conditions for operation and the consequences for violation of the conditions, as well as the adoption of strategies and policies. Emission limits and other product or process standards, the use of best available techniques, and similar techniques can all be seen as applications of the concept of prevention.
Polluter Pays Principle: The polluter pays principle stands for the idea that “the environmental costs of economic activities, including the cost of preventing potential harm, should be internalized rather than imposed upon society at large.” All issues related to responsibility for environmental remediation costs and compliance with pollution control regulations involve this principle.
Public Participation and Transparency: identified as necessary conditions for “accountable governments,... industrial concerns,” and organizations generally, public participation and transparency are presented by UNEP as requiring “effective protection of the human right to hold and express opinions and to seek, receive and impart ideas,... a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality,” and “effective judicial and administrative proceedings.” These principles are present in environmental impact assessment, laws requiring publication and access to relevant environmental data, and administrative procedures.
Precautionary Principle: One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration formulated the precautionary principle: To protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of complete scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle may play a role in any debate over the need for environmental regulation.
Equity: Defined by UNEP to include intergenerational equity - “the right of future generations to enjoy a fair level of the common patrimony” - and intragenerational equity - “the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s natural resources” - environmental equity considers the present generation under an obligation to account for long-term impacts of activities and to act to sustain the global environment and resource base for future generations. Pollution control and resource management laws may be assessed against this principle.
Transboundary Responsibility: Defined in the international law context as an obligation to protect one’s environment and prevent damage to neighboring environments, UNEP considers transboundary responsibility at the international level as a potential limitation on the sovereign state’s rights. Laws that limit externalities imposed upon human health and the environment may be assessed against this principle.