Environmentally Beneficial Agreements and Article 101(3) TFEU: Are Non-Economic Benefits an Option?

Abstract:

With the aim of assessing the relevance of environmental concerns under Article 101(3) TFEU, this article starts out with posing the question whether environmental concerns should be considered as relevant at all. This is answered by addressing the interface between competition law and environmental concerns. Discovering that the latter's influence on EU competition law has gradually increased and that environmental concerns have taken on the form of competitive parameters, the integration principle in article 11 TFEU is rendered relevant to the issue. That again raises the overarching question of how precisely or in what form environmental concerns should be applied under article 101(3) TFEU.

To address that issue, two ways of incorporating environmental concerns into an article 101(3) TFEU assessment are introduced, i.e. an economic value approach - adopted by DG Competition - and the proposed non-economic approach. Problems regarding the former approach are highlighted. Most notable is the question whether the Union Courts could find the economic value approach to constitute a manifest error of appraisal. In an effort to introduce an alternative approach - one capable of accommodating other EU ambitions in the application of EU competition law - the article introduces and explores the benefits of the non-economic approach.