Falling through the cracks no more? Article 102 TFEU and sustainability: the relation between dominance, environmental degradation, and social injustice

Abstract

EU competition law has a sustainability gap, particularly when it comes to enforcing Article 102 TFEU as a ‘sword’ to prohibit dominant undertakings’ unsustainable conduct. In this article, we ask whether EU competition law can and should be part of a holistic EU solution to the climate crisis and how it can contribute to ensuring that our social, economic, and ecological systems are not entrenched into further perpetuating and mutually reinforcing crises. By using EU constitutional theories of ‘mainstreaming’, we argue for the inclusion of environmental and social sustainability goals in those that are pursued by EU competition law. With research that cuts across law and socioecological studies, we offer an original and unique perspective that identifies a relation between market power and business practices that harm people and planet. We do this by demonstrating empirically that undertakings that have in the past been found to be dominant, also engage in unsustainable business practices. This relation is significant, as it demonstrates that addressing unsustainable business practices through Article 102 TFEU is not only a theoretical possibility mandated by EU constitutional law. It is a real opportunity to address environmental and social injustices and thereby contribute to tackling the most important existential threat facing humanity, climate change.