The European Commission's new Horizontal Guidelines: a great reset for competition law and sustainability?

Abstract

This article shows how after a period of retrenchment in the previous version of its guidance, in the 2023 Horizontal Guidelines the European Commission has pivoted to creating more room for sustainability enhancing agreements within the application of the competition rules. The main tools that allow companies to foster sustainability are based both on permitting sustainability based standardization within the scope of Article 101(1) TFEU and on an innovative approach to the legal exception in Article 101(3) TFEU, notably in relation to the fair share criterion. In addition, the Commission has opened the door for guidance for individual sustainability initiatives, that will both provide further clarification and room for development of its approach. Overall, the new approach by the Commission provides a clear framework that is likely to promote sustainability cooperation in the EU in a timely manner while not providing a blanket exemption.