Competition Law Turns Green: State of the Debate

Over the last year, an increasing number of voices have entered the debate on whether competition law should play a role in supporting and promoting sustainability and, if so, how.  In keeping with the global political discourse on the green agenda, there is currently no consensus among competition agencies, the private sector, economists and academics on whether and how the drive for sustainability can be supported by competition law and policy.

BCLP’s Antitrust and Competition team has been following this debate closely and engaging with competition agency leaders and industry stakeholders to assess the current “state of the debate”.  Broadly speaking, we have identified three camps of opinion - what we call the “3Rs”:

• The Reformers - those who believe that competition laws and standards must be adapted to incorporate sustainability benefits into antitrust analyses, including currently, in our view, the Dutch and Greek competition agencies, a broad swathe of the private sector and many academics and antitrust economists;
• The Retainers/Restrainers - those who feel that competition rules already provide sufficient tools to ensure that genuinely beneficial green proposals are not obstructed, and/or who consider that competition agencies are not best placed to implement sustainability policies, including currently, in our view, the European Commission, competition agencies in Germany, the UK and Australia and some academics; and
• The Reflectors - those who are monitoring the debate and are yet to decide where they stand.

BCLP and the Brussels University School of Governance (VUB) hosted a webinar on 23 June 2021 moderated by BCLP Brussels partner Dave Anderson and VUB Professor Harri Kalimo, analysing the state of the green debate through the lens of our 3Rs. The webinar featured expert speakers from the European Commission (speaking for the Retainers/Restrainers), the OECD (speaking for the Reflectors) and Unilever (speaking for the Reformers) on the legal and policy stances taken by each camp on critical issues in the debate. The session focused on sustainability co-operation agreements, which has been one of the most widely discussed aspects of competition law within the green debate. Importantly, the panel discussion looked closely at the potential new private sector opportunities for collaboration between competitors that previously could have been seen as problematic but which could unleash benefits that could help the EU achieve its stated Green Deal targets.

The webinar is part of the “Competition Law Turns Green” series of four webinars. The series is co-sponsored by BCLP and will explore legal challenges, environmental economics and agency/government action and advocacy with the private sector.

The BCLP and VUB webinar series brings together leading academics, policy-makers, regulators and practitioners to offer various perspectives on how competition law and policy should contribute to making Europe, and the rest of the world, greener and more sustainable. Organised by the 3E (Environment, Economy & Energy) Research Centre of the VUB, the Vienna University of Economics and Business (Competition Law and Digitalization Group) and BCLP, the series now turns to explore in more depth key legal issues, environmental economics and agency actions and advocacy with the private sector.