Roma Tre Law Review – 01/2024

Preface

DOI: 10.13134/2704-9043/1-2024/1

The Role of National Competition Authorities in the Assessment of Sustainability Agreements Under Article 101(3) TFUE

The article wishes to contribute to the broader debate on sustainability agreements in European competition law, specifically focusing on the role of national competition authorities (NCAs) in evaluating these agreements under Article 101(3) TFEU. After exploring the potential inclusion of wider policy considerations in the parameters to exempt anti-competitive agreements under Article 101(3) TFEU, the article delves into the risks commonly associated with allowing NCAs to incorporate these into their assessments. Concrete examples illustrate the Commission’s narrow approach and the Dutch NCA’s initially broader perspective. The article argues that perceived risks can be mitigated through the harmonizing role of the European Competition Network. In essence, it advocates for a nuanced approach that respects democratic objectives while upholding legal coherence in Union’s competition law

DOI: 10.13134/2704-9043/1-2024/2

Sustainability Agreements and Article 101 TFEUE

The original notion of individual consumer’s benefit triggering the derogatory effects under Art. 101.3 TFEU has been superseded and definitively expanded so as to include not only individual consumers’ benefits but also all other social value benefits fostering the development of a new social model of market economy superseding the old one embodied in the original Treaty of Rome. On this basis, the paper discusses the recent Communication whereby the EU Commission has provided instructions and guidelines for the proper assessment of the compatibility of horizontal cooperation agreements with the objective set out by Art. 3 TEU of contributing to the shaping of a new European social market economy. This, in particular, implies the extension of the scope of action of all competent public authorities and the evolution of their power of control to such an extent as to include the assessment of the consistency and the actual sustainability of the effects deriving from each specific cooperation agreement for the benefit of the entire community thereby affected.

DOI: 10.13134/2704-9043/1-2024/3

The EU Commission’s Guidelines on Horizontal Cooperation Agreements: Sustainability Agreements and the Safe Harbour for Sustainability Standards

The role that various areas of law may play in addressing sustainability objectives is currently under debate. In competition law, the topic is part of a larger discussion about the use of antitrust law to further non-economic objectives and its alignment with the traditional consumer welfare standard. The process of revising the Horizontal Block Exemption Regulations provided an opportunity for the European Commission to address sustainability agreements. The new Horizontal Guidelines, adopted in June 2023, include a specific chapter dedicated to them. This paper analyses the main features of this chapter, within which a significant part is devoted to sustainability standards. The analysis highlights that the Commission has cautiously confirmed its traditional stance while considering broader forms of benefits in the competitive assessment, providing a soft safe harbour for sustainability standards, and maintaining a certain degree of flexibility.

DOI: 10.13134/2704-9043/1-2024/4

Competition and Environment: Conflict or Confluence? Some reflections on sustainability agreements under Article 101(3) of the TFEU

The article is based on an analysis of Article 101 of the Treaty on the Functioning of the European Union (TFEU). This provision sets out the general rule of the prohibition of agreements between companies that may distort competition, with an exception for agreements that contribute to improving the production of products. The author, based on international and European provisions, proposes an interpretation of ‘production improvement’ also in an environmental sense. This interpretation could justify agreements between companies that, while contrary to the application of competition principles, move towards sustainable production (so-called sustainability agreements), even if they do not reflect the application of the competition principle. The competition principle emerges clearly in the Italian Environmental Code and is applied in waste regulation and Extended Producer Responsibility (EPR) systems. The author believes that this principle, on the one hand, is crucial to encourage sustainable production and economic efficiency but, on the other hand, should not be considered an absolute principle. Indeed, sustainable production requires exceptions to the principle itself, but only to the strict extent necessary.

DOI: 10.13134/2704-9043/1-2024/5

The European Green Deal and the New Deal

The 2019 European Green Deal and the New Deal share a title: but are there more substantive connections between these two ‘deals’? By recalling the significance of the New Deal in the historical context of the United States in the 1930’s, this study explores the ways in which both reforms seek to transform the constitutive values of the state and of the marketplace. Both deals also challenge economic orthodoxy and widely-held cultural values that shift blame onto individuals to distract from systemic failures. These parallels – as well as some key differences – can help us to better understand the significance of what Green Deal has, and has not, achieved. 

DOI: 10.13134/2704-9043/1-2024/6

Sustainability and Market Failure: Regulation v. Competition

The paper deals with the trade-off between competition enforcement and regulation when it comes to sustainability policies. It starts from public policy analysis in its traditional, three steps, economic approach: identifying the economic problem and market failures; outlining the options in solutions; balancing the pros and cons of regulation versus competition enforcement, in the light of the initiatives on sustainable competition already taken by National Competition Authorities. The articles conclude on a focal role for antitrust law and policy in the ecological transition envisaged by the Green Deal, as far as dynamic competition promotes green innovations.

DOI: 10.13134/2704-9043/1-2024/7

Sustainability and Antitrust: Conflict, Trade-Off or Good Friends?

How can competition law contribute to the promotion of sustainability? Should sustainability be an explicit goal for competition law? Are antitrust authorities equipped for the assessment of environmental effects that do not affect consumers in the market? And, if not, could they still have a significant role, without distorting their mission and their independence? This brief paper tries to provide some tentative answers to these challenging questions.

DOI: 10.13134/2704-9043/1-2024/8

Sustainability and Competition Law and Policy: Do We Need to Broaden the Concept of ‘Consumer Welfare’ in Order to Contribute to the Realisation of Green Transition?

Consumer welfare is a core element of many antitrust regimes. It is not surprising, therefore, that it attracts many of the tensions associated with the growing calls for competition policy to extend the scope of interests pro-tected by competition law to non-market values such as environmental protection. This article analyses the risk that antitrust assessments lose their objectivity and verifiability when they move away from economic-quantitative criteria to rely on more abstract parameters such as the contribution to sustainability goals. To this end, the reflection focuses on the discipline of sustainability agreements in the European Commission’s 2023 Guidelines on horizontal co-operation and compares this balanced solution with an alternative Dutch proposal, more daring but more risky.

DOI: 10.13134/2704-9043/1-2024/9

Jean D’Aspremont Lectures At Roma Tre University

DOI: 10.13134/2704-9043/1-2024/10

The Rise of Pseudo-intellectual Property and the End Public Domain

DOI: 10.13134/2704-9043/1-2024/11