1. Environmental Considerations in European Competition Law
September 21, 2018

2. Road Map The European Legal Framework
The Competition Law Framework in the European Union (EU)
Environmental Considerations in EU Competition Law
September 21, 2018

3. The European Legal Framework From Rome to Lisbon
EC: Treaty of Rome (1958)
EU: Maastricht Treaty (1993)
Lisbon Treaty (2009)
September 21, 2018

4. The European Legal Framework
Lisbon Treaty
Treaty on EU
Treaty on the Functioning of the EU (TFEU)
September 21, 2018

5. The European Legal Framework
Treaty on the Functioning of the European Union
Principles
Environmental Integration Obligation
Union Policies
Competition Law
September 21, 2018

6. The European Legal Framework
Environmental Integration Obligation
Article 11 TFEU
Environmental protection requirements must be integrated into the definition
and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.
September 21, 2018

7. The Competition Law Framework in the EU
Article 101 TFEU
Article 102 TFEU
Exceptions eg Article 106(2) TFEU
Merger Regulation
101(1) prohibiton of cartels
101(2) cartels agreements void
101(3) exception for agreements that bring about
“improvemen of production or distribution of goods or to promoting technical or economic progress”
“Comsumer fair share”
“Not indispensable”
“No elimination of competition”
102
Just prohibits abuse by dominant undertakings
106(2)
Exception of undertakings providing services of general interest but only exception in so far as this is necessary
Merger regulation
Two step analysis after notification, quick look or then more intense look
Test long the lines of article 101(3)
September 21, 2018

8. The European Legal Framework
Environmental Integration Obligation
Article 11 TFEU
Environmental protection requirements must be integrated into the definition
and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.
September 21, 2018

9. Scope of Competition Law
EU competition law applies to undertakings
Function and not form is decisive
Undertaking means any entity carrying on commercial activities relating to goods or services
“untertaking” means any entity carrying out commercial activities relating to goods or services This is the most important definition as it sets out the realm
This definition means that state bodies engaged in economic activityas well as hospitals, but also liberal professions etc. all that can be provided in competition...
September 21, 2018

10. Scope of Competition Law
The Definition of Undertaking and the Environment
Nearly all fall under the functional except
Activities based on the principle of solidarity
Exercise of public power
Purchases for non-economic activities
“untertaking” means any entity carrying out commercial activities
What are non-commercial activities?
activities principle of solidarity,
exercise of public power
purchases for non-economic activities
What about environmental protection?
Diego Cali
September 21, 2018

11. Object or effect of hindering competition
Article 101(1)
Object or effect of hindering competition
Environmental Considerations in effect cases?
Horizontal Cases
No effect, precise environmental aim but implementation left
open
The creation of a new market
2. Vertical Cases
Selectivity cases
European Rule of Reason and the Environment
Prohibition of agreements that have the object of effect of distorting competition
Horizontal Cases
No effect, precise environmental aim but implementation left open (“ACEA, CEMEP” and “JAMA and KAMA”)
The creation of a new market (DSD and ZVEI/Arge Bat)
Vertical Cases
Selectivity cases (objective qualitative criteria-- Metro I)
September 21, 2018

12. Environmental considerations in the four conditions of Art 101(3)?
Article 101(3)
Environmental considerations in the four conditions of Art 101(3)?
Improvement of production/distribution or technical/economic progress
Fair share to the consumer
Restriction does not go beyond what is necessary
No elimination of competition
Improvement of production/distribution or economic progress
Ford/Volkswagen
Exxon/Shell
Philips/Osram…………….environmental improvement as an improvement of production
Fair share to the consumer
Philips/Osram
CECED
What benefit for the consumers?
Product cleaner higher environmental quality.
What about CECED? Only benefit to society?
Restriction does not go beyond what is necessary
No elimination of competition
September 21, 2018

13. Article 102 TFEU Abuse of a Dominant Position
Without justification
Abuse of a dominant position/Monopolization
1. Dominant position
2. Abuse
3. Without justification
September 21, 2018

14. Justification Abuse in the name of the environment?
analysis of the facts of the case, the economic environment
 is there a good reason for this behaviour?
Justification
The question of justification requires
analysis of the facts of the case, the economic environment
is there a good reason for this behaviour
Environmental protection as justification?
Public policy cases: Hilti and Tetra-Pak
- Unsuccessful  General not possible?
No, due to the facts!
Should we have a environmental reasons as objective justification?
(p) alignment with Article 101
-objective justification as European Rule of Reasoon
- Efficiency justification along the lines of Article 101(3)
September 21, 2018

15. General Exceptions to the Competition System
Agreement required by legislation
Enterprises entrusted with services of general economic interest (but only to the extent necessary)
General exception to the Competition System
Agreement required by legislation
- Environmental Law obliges to act in a certain way: Ladbroke
Enterprises entrusted with services of general economic interest but only to the extent necessary
September 21, 2018

16. Article 106(2)
Undertakings entrusted with services of general economic interest (but only to the extent necessary)
Service of General Economic Interest
Entrusted
Proportionality of Restriction
What is a service of general economic interest?
Better economic service of general interest....
e.g. utilities, telecommunication, post....
Environmental protection Case Sydhavnens Sten & Grus (management of particular waste)
services were equal access is needed for all and affordable terms...
usually some form of cross-subsidisation (area which are commercially viable to area which are not).....
However to important restrictions:
- Entrusted by the state
- Necessity requirement
September 21, 2018

17. Summary Where can environmental protection come into play?
Scope: Definition of undertaking
Article 101 (1) effect cases
Article 101 (1) European Rule of Reason
Article 101 (3) “efficiency defence”
Article 102 objective justification
Article 102 “efficiency defence”
State compulsion
Article 106 (2) TFEU
September 21, 2018

18. Environmental Protection in Competition Law in Colombia?
Self standing policy goal?
Development as aim: but what kind?
Paternalism
September 21, 2018

19. Thank You!
Questions, Comments?
September 21, 2018