More Sustainability In Merger Control?

By: Johanna Welsch (D’Kart)

With the European Green Deal, the European Commission has initiated the transformation to a modern, resource-efficient and competitive economy. The core objective of the Green Deal is to make the economy of the European Union climate-neutral by 2050. All policy areas are to be reviewed to see how they can contribute to this. Thus, competition policy is also concerned with how climate protection and other sustainability goals can be better taken into account in antitrust law.

In order to approach the question of how to operationalise the manifold sustainability goals in antitrust law, it seems reasonable to initially focus on the two ecological dimensions of climate and environmental protection, since climate and environmental goals are already defined more clearly than other sustainability goals.

So far, the debate has mainly been conducted in the context of the assessment of cooperations under anti-trust law. This is certainly partly due to the fact that there are currently hardly any merger control proceedings with a reference to sustainability. However, it is possible that sustainability aspects will be raised more often in the context of the examination of merger projects in the future.

In many mergers, the protection of competition does not conflict with the pursuit of climate protection goals, yet both goals prove to be complementary. The assessment only becomes difficult when mergers contribute to climate protection but at the same time harm competition in the market, or vice versa. This raises the question of whether and, if so, how such a conflict can be resolved. In the field of merger control, two approaches are feasible…

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