EU antitrust in support of the Green Deal. Why better is not good enough

Abstract

The European Union (EU) Commission proposes to ‘green up’ its enforcement of Article 101(3) TFEU to allow producers to collectively overcome so-called first mover disadvantages that would result from inefficient market regulation. The Commission's reboot focuses on the last three exemption conditions. First, the consumer benefit condition is customized to use collective consumer benefits to determine whether consumers receive a ‘fair share’ of the benefits established under the efficiency condition. Here, the Commission bypasses the Dutch proposition to also take account of non-consumer benefits when investigating whether consumers are compensated for anticompetitive harm. Second, the indispensability condition is tasked to filter out greenwashing. Third, the residual competition condition is trusted to allow private collective action insofar it does not eliminate competition on price and/or innovation. Discussing both EU and Dutch proposals, this article finds that greening up Article 101(3) brings competition policy outside the limiting principles that define objective and effective competition enforcement in terms of voluntary exchange.