Europe’s Green Ambition: New Guidelines of the European Commission on the Application of Art. 101 TFEU to Sustainability Agreements – A Critical Account

Abstract On 1. March 2022 the European Commission (Commission) published a draft of new Horizontal Guidelines (DHG 2022) that dedicate a separate chapter to provide guidance on the application of Art. 101 TFEU to Sustainability Agreements. A primary objective of the Commission is to facilitate cooperation of undertakings that contributes to the ‘green transition’. The DHG 2022 clarify that competition and sustainability are complementary objectives and – contrary to claims of some commentators – reject more general restrictions of Art. 101(1) TFEU. Nevertheless, the new guidelines provide useful guidance on (soft) safe harbours for certain types of Sustainability Agreements. At the same time, the Commission advocates a broad reading of Art. 101(3) TFEU that would allow to credit a wide range of individual but also collective sustainability benefits. A closer look reveals that the suggested approach is difficult to reconcile with the case law of the European Courts. Moreover, the Commission’s interpretation of the legal exemption raises fundamental questions of the legitimacy of private companies to take normative decisions with far reaching distributive effects.