Environmental defences as a shield from Article 102 TFEUClick here to read the full article online
Against the backdrop of the European Green Deal, the Commission, via DG COMP, is now well underway in its process of envisioning how competition law can do its part in response to the impending environmental threats. However, Article 102 TFEU as a whole, and more specifically objective justifications pertaining to this legal basis, have been left out of the discussions. This article contemplates how objective justifications could be shaped and construed to ensure Article 102 TFEU does not hamper the potential contributions of dominant undertakings to the Green Deal. As such, it summarises other authors’ propositions and puts forward some food for thought on the conceptualisation of Article 102 TFEU environmental objective justifications. The below-mentioned findings suggest expanding the current efficiency gains framework of Article 102 TFEU to “economic and environmental benefits” or creating in the Guidance on the enforcement of Article 102 TFEU a third category of objective justifications dedicated essentially to environmental benefits.