Antitrust law and sustainable development

After an introduction aimed at providing the basic elements of antitrust law and enforcement, as necessary to understand the problems raised by the emerging need to incorporate ethic and green consideration in the analysis, the course will then cover the debate on the goals of antitrust laws and its recent revitalization. Such a debate will then be seen at play within the framework of art. 101.3 TFUE (providing balancing criteria to "exempt" from prohibition restrictive agreements that are capable to produce countervailing benefits). Some specific topics taken from case analysis and recent trends will be then illustrated, with particular reference to art. 101 TFUE cases: cooperation agreements as collective attempts to reach higher levels of sustainability, as well as collusive agreements by which firms restrict competition and innovation in sustainability, as in the recent AdBlue decision of the EC. A view on merger control and the reform that is currently under debate as needed to tackle sustainability issues, will be the topic of the last section of the course.

The main contents of the course are the following

I. The goal of sustainability: general notions of sustainability; within the EU; the EU Green Deal
II. Basic Antitrust: subject matters (restrictive agreements, abuses of dominant position, merger control - art. 101, 102 TFUE, Reg 139/04); enforcement institutions (the European Commission, the European Courts, National Competition Authority and National Courts); enforcement tools (public enforcement, private enforcement); public interest and competition policy (art. 3 TUE)
III. The clash of competition policy with sustainability goals: an introduction - current proposals for reform
IV. The goals of antitrust law - a brief overview of the history of antitrust (1890 Sherman Act in the US, the EEC in the 1957 Rome Treaty, national competition laws in Europe, the "modernization" of EU competition law in 2003, the current debate)
V. Basic welfare economics and the "consumer welfare standard" (Harvard, Chicago and Post-Chicago; the "neo-brandesian" antitrust movement)
VI. The CECED case (1999): antitrust and sustainability in the pre-modernisation era
VII. Balancing judgments and art. 101.3 TFEU - the four conditions; social benefits and harmed consumers; the "fair share" to consumer test
VIII. The "more economic approach" is there room for "non-economic values"? The EC General Guidelines on art. 101.3 - Case analysis: Irish Beef, Ford/Volkswagen
IX. Balancing within art. 101.1: collective negotiations between management and labour. Case analysis: Albany.
X. Integration of goals in the European Treaties: making room for consideration of different policies - separate or integrated applications
XI. Cooperation amongst competitors for sustainability (sustainable standard setting; phasing-out unsustainable products or technologies) - Case analysis: Chicken of tomorrow and Energie Nederland - The Dutch Authority's policy on animal welfare and carbon consumption containment in 101.3 analysis
XII. The current review of the Block Exemption Regulations on horizontal cooperation and sustainability. General sectoral exemptions: the agriculture case
XIII. Collusion among competitors: to delay innovation in sustainability; collusion to greenwash. Case analysis: AdBlue (EC, 2021)
XIV. Merger control and sustainability: killer acquisitions to hamper innovation in sustainability; environmental harm as a reason to block mergers