Sustainability in EU Competition Law : An Analysis of Article 102 TFEU in Light of the European Green Deal

The European Commission presented the European Green Deal in 2019 with the ultimate goal of achieving net zero greenhouse gas emissions by 2050. For this reason, the possibility of considering sustainability in EU competition law have received increasing attention in recent years. The aim of this thesis is to examine the role of environmental sustainability in assessments of abuse of dominance under Article 102 in the Treaty on the Functioning of the European Union [TFEU]. The discussion is commonly framed as using sustainability as a ‘sword’, prohibiting unsustainable conduct by dominant undertakings, and as a ‘shield’, allowing dominant undertakings to objectively justify prima facie abusive conduct where it promotes sustainability. Article 102 TFEU applies to conduct by undertakings, that is, entities engaged in economic activity, that are dominant on the relevant market. Abuse consists of conduct that is objectively capable of affecting trade between EU member states and harming on competition. The illustrative list of abuses in Article 102 TFEU covers exploitative abuses, directly harming consumers and exclusionary abuses, indirectly harming consumers by distorting market structure. To what extent sustainability is to be taken into account under Article 102 TFEU depends on the adopted competition law theory. While competition law has traditionally been understood as pursuing primarily economic objectives, the ordoliberal approach, the Harvard School and the post-Chicago theory, unlike the Chicago School, are to different extents open to understanding competition law as pursuing multiple objectives. From legal-systematic, policy and economic perspectives, this thesis argues that Article 102 TFEU allows sustainability to be used as a sword and as a shield in abuse assessments. Dominant undertakings engaging in unsustainable conduct may abuse their dominance where the environmental harm is disproportionate to any legitimate business interest and the conduct cannot be regarded as competition on the merits. In such circumstances, primarily Article 11 TFEU requires that environmental protection be taken into account. This is the case particularly where the conduct presupposes or is indissociably linked to a breach of EU environmental rules. Furthermore, a dominant undertaking may use sustainability as a shield in exceptional cases where the environmental benefits of the conduct clearly outweigh the harm to competition and are strictly proportionate to that harm. Such environmental benefits must be sufficiently administrable and predictable so as to not undermine legal certainty. The current application of Article 102 TFEU does not contribute to the goals of the European Green Deal, however, this thesis argues that the provision has the potential to do so. It is therefore suggested that the European Commission’s forthcoming guidelines on Article 102 TFEU clarify the conditions under which sustainability should be taken into account in assessments of abuse of dominance, both as a sword and as a shield.