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Escaping the Clutches of EU Competition Law Pathways to Assess Private Sustainability Initiatives

Giorgio Monti and Jotte Mulder, European Law Review, Issue 5 2017

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We review the recent attempts by the Netherlands to stimulate private sustainability initiatives. Early moves have been challenged as infringements of EU competition law, and the current plan looks as if it may not escape scrutiny under the EU competition rules or the internal market rules. A review of the ECJ’s case law, however, suggests that both the Dutch competition authority and the Commission take too narrow a view of the way in which private sustainability initiatives could be carried out. At the same time, the case law remains ambiguous and inconsistent. In the name of stimulating diverse approaches to achieve environmental goals across the EU, we argue for greater convergence of the way sustainability initiatives are assessed under EU competition law and internal market law.

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