Radical for whom? Unsustainable business practices as abuses of dominance

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The discussion about how European Union (EU) competition law can support sustainability goals, for instance those of the European Green Deal, entirely neglects the role Article 102 TFEU can play. Equally absent is a discussion of the role competition law enforcement can play to strike down unsustainable business practices. Instead, the debate is mostly dominated by how competition law can facilitate (otherwise anticompetitive) agreements of undertakings through the application of Article 101(3) TFEU, essentially, offering less competition in exchange for sustainability initiatives.

Our research addresses the Article 102 TFEU gap in the debate and in the enforcement of EU competition law by looking at why and how the prohibition can be used as a sword to strike down unsustainable business practices. In this short chapter, we present our research on the relation between dominance and unsustainable business practices, examine briefly Article 102’s purpose and how it informs the concept of ‘abuse’, and introduce our ideas on how to see unsustainable business practices as ‘abuses’ of a dominant position. We do so by looking at barriers to entry, effects, and theories of harm.

Our approach is a departure from how Article 102 is currently enforced and contrary to an economic approach to EU competition law that is obsessed with efficiency instead of fairness and level playing field, that understands competition as a race to the bottom to reward undertakings that care only about profit, that is disjointed from the acute problems our societies currently face, and that is based on a blind belief that markets will solve those problems.

Yet, as we argue in this paper, that approach has failed and there is nothing normal, logical, or inevitable about the kind of competition it has enabled. We realised long ago that common standards (e.g. harmonization), offsetting charges (e.g. tariffs, anti-dumping measures, countervailing duties for subsidies), or exceptions on public policy grounds are needed in order to ensure States do not compete unfairly with low regulation. Within the context of constitutionalisation of private law, it is only inevitable to ensure that powerful market players be constrained from doing the same through their conduct. Thus seen, our approach is about more competition, just not the toxic kind. It is a call for refocusing competition policy and reconnecting concepts such as ‘abuse’ with the goals of the system of EU competition law.