Legal Design in Sustainable Antitrust

Abstract

We lay out a roadmap for how the legislator could create a framework of ‘sustainability corridors’ that would allow relying on the ancillary restraints/Wouters doctrine to make antitrust law more accommodating of sustainability considerations. Our analysis goes beyond the general feasibility of such corridors. It discusses different use-cases for such exemptions and methods for assessing the necessity of competitive restraints to achieve a legislatively defined sustainability goal. We show how this avoids the pitfalls of a multigoals approach, under which it would be left to antitrust authorities and courts to reconcile sustainability and competition objectives independent of a legislative specification, whereas out-of-market benefits (externalities) that would escape even a broad consumer welfare approach can still be accounted for. Our proposal sets out specific requirements for such sustainability corridors that ensure that the ensuing antitrust assessment is governed by a strict and quantifiable indispensability test. Specifically, we discuss three such instances: specific sustainability obligations placed on individual firms, which may however require collective actions; specific mandates that are targeted at the respective industry rather than individual firms; and policy objectives that are not targeted at individual firms or industries but provide a metric for the measurement of sustainability benefits (for example, by way of conducting an abatement cost analysis).