Competition law and sustainability: the case for coherence

As Iacovides and Vrettos very eloquently put it, addressing the existential threat of the climate crisis requires a radical reconfiguration of business models and the societal institutions that regulate them.[1] Whilst competition law and its enforcement are by no means a panacea to the climate emergency, they are a crucial component of the broad policy framework that drives and regulates private sector activities, and as such should play a coherent role in incentivising private actors to align their practices with sustainability and climate objectives.[2] The rising market power of dominant firms across many industries has also raised the imperative that the enforcement of competition policy aligns with – and does not undermine – achieving environmental and social goals.[3]

Against this backdrop, 2023 has seen regulators step up efforts to provide guidance to businesses on how existing competition law frameworks may be navigated to further sustainability objectives. The European Commission (“EC”) and the UK Competition and Markets Authority (“CMA”) stand out in this regard for having issued comprehensive guidelines on the interpretation of the Article 101[4] and Chapter I[5] prohibitions in connection with sustainability agreements between competitors. Although concrete examples of enforcement are yet to emerge, the expansive approach to ‘consumer welfare’ that the CMA envisages adopting in the assessment of certain agreements is especially likely to enable wider sustainability considerations to come to the fore in UK competition policy.

Alongside regulatory policy and public enforcement, there is also likely to be an emerging role for private litigation to play in clarifying how competition law – in particular, abuse of dominance[6] – may apply in the context of sustainability and environmental impacts. The collective actions recently brought before the UK Competition Appeal Tribunal against six UK water companies[7] – and yet to be certified – are emblematic of this trajectory.

In this article, we briefly present the conceptual debate surrounding the relationship between competition policy and sustainability. We then go on to provide an overview of the recent developments in the EU and in the UK driven by that debate, and the opportunities they open for both public and private enforcement of competition law to be an integral part of the solution to the climate and sustainability emergency.

1. Framing the debate

A discussion of the interplay between competition law and sustainability inevitably engages an a priori debate as to precisely what should be the aims of, and standards upheld by, competition law. In fact, similar types of conduct may be pro-competitive or anti-competitive depending on the standard against which such conduct is assessed.

There is extensive literature and a wide range of views on the goals of competition law (in particular, EU competition law)[8], which we do not intend to survey here. In relation to the specific issue of managing any potential conflict between competition and sustainability, however, there is a certain consensus that a strict ‘consumer welfare’ standard – i.e. one that focuses on the consumers who purchase in the markets affected by the conduct in question, and/or on the short-term price effects of such conduct – is not suitable to consider situations where there may be a lessening of competition that could result in substantial environmental benefits.[9] This is because there is a significant potential conflict between the outcomes viewed as positive under a strict consumer welfare benchmark (e.g. greater output and lower prices) and effects on sustainability (where sustainability outcomes may instead require lower output and higher prices).[10] Similarly, sustainability initiatives – for example an agreement between competitors aimed at mitigating a negative externality such as pollution in a particular area – may well benefit individuals who do not necessarily consume those firms' products or services.

Simon Holmes and others argue that EU competition law (or the analogous national competition regimes in Europe) is not in any event focused on a narrow consumer welfare standard, and that the notion of ‘welfare’ does invite consideration of sustainability issues when read in conjunction with the constitutional provisions of the EU Treaties and the EU Charter of Fundamental Rights.[11] Further, recent empirical research has identified as many as seven overarching goals for EU competition law based on a review of Commission decisions, CJEU judgments, advocate general opinions and Commissioner for Competition speeches, with no goal emerging as being predominant.[12]

Ultimately, competition policy is not and should not be entrenched; it is unlikely that any goal it sets itself will be capable of being implemented in practice without making compromises based on practical and pragmatic considerations on the specific facts of each case.[13] This is likely to be particularly true in a sustainability context, given the speed at which the climate crisis is advancing and the structural reconfiguration that markets will need to undergo to seek to abate it. The current appreciation of climate change as an immediate, tangible existential threat may require more weight to be placed on environmental and sustainability factors in appropriate cases.

Therefore, regardless of the precise standards that are deemed suitable in principle to allow sustainability into the equation, they will need to be interpreted and applied as flexibly and expansively as possible in order to be responsive to these fast-paced changes. In particular, there should be scope for competition rules to be used as both a ‘shield’ and a ‘sword’ for promoting sustainability objectives.[14] Most recently, competition enforcement in digital markets has required regulators flexibly to apply existing legal concepts to address novel market dynamics, practices and harms – the same will be needed in respect of markets transitioning to net zero.

2. Regulatory guidance on the competition assessment of ‘sustainability’ agreements

EU developments

In June 2023, the EC published revised Guidelines on horizontal cooperation (the “EC Guidelines”)[15] along with revised Horizontal Block Exemption Regulations on R&D and specialisation agreements. The EC Guidelines include a new Section 9.3 setting out guidance on the assessment of horizontal cooperation agreements that pursue sustainability objectives (defined as ‘sustainability agreements’) under Article 101(1) TFEU. The EC provides guidance on both (a) the categories of sustainability agreements that are unlikely to fall within the remit of Art. 101(1) and (b) the framework for the assessment of sustainability agreements that do fall within the scope of the Article 101(1) prohibition.

Notably, as regards (b), the EC Guidelines provide for a “soft safe harbour” in the effects analysis specifically for ‘sustainability standardisation agreements’ (i.e. agreements which may be entered into between competitors to standardise certain practices for a specific environmental reason, for example where competitors agree to standardise certain sustainability standards in regard to packaging) if certain cumulative conditions are met. As regards the analysis of sustainability agreements more broadly, any such agreement that produces appreciable negative effects on competition may benefit from the exemption under Article 101(3) provided that the latter’s cumulative conditions are satisfied, including the requirement that consumers receive a ‘fair share’ of the purported benefits.

Interestingly, the EC notes that the assessment of the ‘fair share’ requirement may also take into account “individual non-use value benefits”, i.e. the indirect benefit to the consumer in the form of appreciation of a cleaning product which uses less chemicals (as it is less harmful to the environment) as opposed to a direct benefit where the product results in a superior clean. However, the Guidelines define ‘consumers’ as comprising “all direct and indirect users of the product covered by the agreement”, thereby excluding from the assessment the potential benefits that sustainability agreements may bring to wider groups and society as a whole. Although the EC Guidelines envisage that “collective benefits” may be considered, this is only permitted in those circumstances where consumers in the relevant market substantially overlap with (or are part of) the beneficiaries outside the relevant market. To use the same example as the EC, this applies where drivers (consumers) purchase less polluting fuel which would also benefit citizens (beneficiaries) who breathe in fresher air (which include drivers themselves).

UK developments – the CMA’s Green Agreements Guidance

The CMA has made ‘supporting the transition to a low carbon economy’ one of its strategic objectives since 2021.[16] The CMA’s draft Annual Plan for 2024/2025, which is being consulted upon at the time of writing, confirms that the CMA will “continue to take action to accelerate the transition to a net zero economy and promote environmental sustainability”.[17] The CMA has sought to address this objective in the context of both competition and consumer protection law. Our focus in this section is on the key competition initiatives, however it is worth noting that the CMA has been very active in the consumer space, with the issuance of its ‘Green Claims Code’[18] and several instances of enforcement action being taken against companies for ‘greenwashing’ conduct[19].

On 12 October 2023, the CMA published the final version of its Green Agreements Guidance (the “CMA Guidance”), aimed at assisting businesses with their assessment of the application of Chapter I of the UK Competition Act 1998 (“CA98”) to environmental sustainability agreements entered into between competitors.[20] Publication of the final CMA Guidance followed the CMA’s advice to the Government, issued in March 2022, where the CMA recognised that stakeholders needed more clarity in this area, including in relation to the exemption criteria applicable to sustainability goals.[21] The CMA at the same time launched its own Sustainability Taskforce, which has been in charge of developing the Guidance.

Similar to the EC Guidelines, the CMA says that a benefit must be felt in the relevant market, here the UK, and would only be determinative for the purposes of the exemption where the benefit to UK consumers outweighs the harm they suffer due to the agreement. For most types of environmental sustainability agreements, the CMA Guidance confirms the traditional approach that it will only be appropriate to take account of the proportion of the wider environmental benefits that are enjoyed by consumers of the product covered by the agreement. Interestingly, however, the CMA considers that this criterion should be interpreted more widely when assessing agreements which specifically contribute to combatting climate change, to take into account “the totality of the climate change benefits to all UK consumers arising from the agreement”.[22] Therefore, for such agreements, the CMA may consider the totality of the benefits accruing to the entire UK population. Parties to an agreement who would like to rely on this wider benefit would need to prove that the benefits are in line with, or exceed, existing legally binding requirements or national or international targets. This is a significant step whereby the CMA has chosen to depart from the traditional approach to horizontal agreements under the EU model and move closer towards a global approach to ‘benefits’ that better reflects the all-encompassing, global nature of the efforts required to tackle the climate emergency. It will be interesting to see how the CMA will apply this approach in practice in the context of its stated “open door” policy, whereby companies are encouraged to approach the authority for informal advice on sustainability and are promised immunity from fines if the CMA were to ultimately find an infringement (provided that the parties did not withhold relevant information that would have made a material difference to the CMA's assessment).[23] This is an area where the UK may be at the forefront of important developments, including in light of the scope for the CMA and courts to depart from EU precedent post-Brexit in certain circumstances.

The first application of the Green Agreements Guidance under the CMA’s open door policy was in relation to the Fairtrade Foundation’s planned ‘Shared Impact Initiative’ for the sourcing of Fairtrade banana, coffee and cocoa products by participating UK grocery retailers.[24] The stated objective of the Shared Impact Initiative was to use longer-term supply arrangements between the retailers and participating Fairtrade producers to provide the producers with the security they need to invest in sustainable practices, including farming practices which reduce the environmental impact of production. The CMA concluded in its informal guidance that there are unlikely to be competition concerns raised by the initiative due to its limited scope and, even if there were adverse impacts on competition, these are considered to be necessary and proportionate to achieve the overall sustainability aim of the initiative. The CMA considered the impact on competition between the retailers and between producers but found no competition concerns, particularly because of the small scope of the initiative and retained autonomy of participating retailers to, inter alia, set their own retail prices and trade outside of the initiative. Although relating to a very self-contained initiative, this first informal guidance is a useful indication of the CMA’s approach to the issues and will be important in instilling confidence for other sustainability initiatives to come forward.

3. Rethinking abuse of dominance through a sustainability lens

It has been said that monopolistic firms can redirect their excess profits from shareholders to stakeholders, and ultimately to the public good.[25] However, there is compelling evidence of a connection between market dominance and unsustainable business practices[26] and that increased competition – as a challenge to incumbent firms – produces the necessary incentives to innovate and invest in sustainability initiatives.[27] The two propositions are not necessarily mutually exclusive. Whatever one’s view on the extent to which large (and often dominant) companies are primarily responsible for unsustainable business practices, it is indisputable that they are likely to have a greater impact on the economic transition to net zero. Their extensive resources and leverage can be employed to either contribute to or hinder such transition much faster, and often on a much more global scale, than Governments and regulators will ever be able to do.[28] As such, it is imperative that competition rules on the one hand permit dominant companies to use their market power to advance sustainability ambitions, while on the other hand providing a useful framework to hold them to account when their abuse of market power hinders such ambitions. Yet, as some commentators have noted, there is little research or discussion about how abuse of dominance provisions can support sustainability goals, or be used as a tool to abate unsustainable business practices.[29] 

The Article 102 / Chapter II framework

This gap in the debate may be due to the fact that the assessment of conduct under Article 102 / Chapter II is quite different from the one required under Article 101 / Chapter I. There is no equivalent to the block exemptions or the cumulative Article 101(3) / section 9 CA98 conditions for anti-competitive agreements under abuse of dominance provisions, and the same conduct may or may not be abusive depending on whether it is objectively necessary and proportionate.[30] From a regulatory perspective, therefore, it is likely to be more challenging to provide clear and exhaustive guidelines as to which sustainability goals may or may not justify the exercise of market power by dominant firms in any given case. In this context, the CMA published a ‘Call for Inputs’ where it suggested that: ‘If a business with market power conducts or takes part in a sustainability initiative that might otherwise be considered an abuse of dominance, this conduct may fall outside of the Chapter II CA98 prohibition if it can demonstrate that the conduct in question is objectively justified and proportionate. This would need to be considered on a case-by-case basis, and evaluating whether the conduct is ‘proportionate’ may, in practice, present challenges similar to those mentioned above in relation to section 9 CA98.’[31] The CMA goes on to give various examples of where the “risk” of a Chapter II[32] infringement may arise where a business with market power takes part in sustainability initiatives (e.g. a business with market power seeking to recoup the cost of significant environmental investments by increasing prices or entering into long-term exclusive arrangements) but whether the practice is abusive or not will ultimately depend on the facts relevant to the sustainability benefits of the conduct in question.

Opportunities from private enforcement

On the flip side, however, the open-ended nature of the Article 102 TFEU / Chapter II prohibitions and the absence of prescriptive guidance as to its interpretation from a sustainability perspective, leave a degree of opportunity for private enforcement to complement regulatory intervention in this area. Private enforcement can play a role in clarifying the application of the existing legal frameworks and setting out specific standards in practice to protect rights of affected parties, in addition to providing incremental avenues for redress for those that may be adversely affected in ways that existing legal frameworks may not have anticipated. This is particularly relevant in a sustainability context, given the speed at which climate issues – and business practices to address them – are developing.

In this regard, courts have consistently affirmed that the categories of abuse of dominance are not closed[33], and there is no reason in principle why the provision could not be used to condemn unsustainable practices which are unfair from a social, environmental or climate change perspective. Further, although there must be an actual or potential effect on trade for Article 102 / Chapter II to be engaged, there is no general requirement that the practice in question specifically prejudices competitors or consumers for it to amount to an abuse. Similarly, no strict ‘fair share of benefits’ considerations apply to take the conduct outside of the scope of the Article 102 / Chapter II prohibitions (as is the case for Article 101 / Chapter I conduct). Arguably, therefore, the abuse may consist in damage to the long-term interests of consumers stemming from current abusive practices which are damaging the environment in which they live. The climate crisis demands fresh thinking on these issues, including as to how loss is conceptualised and quantified.

At the same time, and without undermining the importance of an incremental approach to the interpretation of Article 102 / Chapter II, it should be possible to subsume unsustainable / environmentally damaging practices in existing and well-established categories of abuse, in a way that makes cases easier to argue and more palatable to competition lawyers, economists and judges. Ultimately, the task of establishing abuse is about linking the conduct to its effects on competition on the merits and its relevance to the standard elements of the test to evaluate anti-competitive effects. One poignant example made by Iacovides and Vrettos is the meat production industry, where the low sustainability standards have resulted in extremely low production costs which do not reflect the true costs of meat production.[34] As a consequence of the reduced costs, an undertaking engaging in unsustainable business practices gains a competitive advantage over any competitor that does not engage in them, and especially over competitors who may sacrifice profit to actively pursue sustainable practices. This is unfair competition, as the competitive advantage cannot truly be attributed to normal competition on the merits.

The proposed collective actions recently brought by Ms Roberts before the UK Competition Appeal Tribunal against six water companies over allegations of abuse of dominance by their underreporting of pollution incidents is a good example of environmentally damaging practices being challenged through existing competition law frameworks.[35] Ms Roberts argues that the companies’ conduct resulted in higher prices charged to consumers because higher incidence rates of pollution have a direct impact on water prices that consumers pay under existing regulation and – had the water companies accurately reported the pollution levels – consumers would have paid lower charges. The claim, which is framed as an abuse of dominance case, still awaits certification by the Tribunal, but it is an important first attempt to try and use the UK collective action regime to seek compensation for the damage occasioned by environmentally unsustainable conduct which may otherwise be difficult to pursue by individual litigants, and therefore supplement the pressure that regulation may exert on companies to change behaviour.

Concluding remarks

As Commissioner Vestager put it at a conference in Brussels on competition law and sustainability in 2019, “every one of us – including competition enforcers – will be called on to make a contribution to this change”. In practice, in parallel to addressing these issues from a competition law angle, there will need to be concurrent developments across several other areas of the law in order properly to incentivise businesses to align their practices with sustainability and net zero goals. These should include, amongst others, increased liabilities for environmental harms and the redefinition of director/fiduciary duties to ensure real accountability for private actors. However, it is clear that competition policy is a profound shaper of markets, and as such can and should be part of a unified effort towards the economic transition to net zero. The global renaissance of competition policy and enforcement in recent years must be harnessed in this direction.

Ginevra Bicciolo and Lisa Mildt are Associates in London


[1] Marios Iacovides and Chris Vrettos, ‘Radical for Whom? Unsustainable Business Practices as Abuses of Dominance’ (January 7, 2021) in Holmes, Middelschulte and Snoep (eds.), Competition Law, Climate Change & Environmental Sustainability (Concurrences, 2021),
[2] Hausfeld has previously commented on the chilling effects that a divergence between competition regulation and sustainability objectives may have on the contributions that companies could be making towards net zero – see Hausfeld Competition Bulletin, Is competition law holding back climate change objectives?, 28 February 2022,
[3] For a discussion of why the debate has heightened about the interplay between competition law and sustainability, see Denise Hearn, Cynthia Hanawalt, and Lisa Sachs, ‘Antitrust and Sustainability: A Landscape Analysis’, Columbia Center on Sustainable Investment and Sabin Center for Climate Change Law (July 2023),
[4] Article 101 of the Treaty on the Functioning of the European Union (“TFEU”).
[5] Chapter I of the UK Competition Act 1998 (“CA98”), the UK equivalent of Article 101 TFEU.
[6] The discussion here focuses on the provisions of Article 102 TFEU and Chapter II CA98.

[7] Case 1703/7/7/23 Professor Carolyn Roberts v (1) Severn Trent Water Limited and (2) Severn Trent PLC; Case 1628/7/7/23 Professor Carolyn Roberts v (1) United Utilities Water Limited and (2) United Utilities Group PLC; Case 1629/7/7/23 Professor Carolyn Roberts v (1) Yorkshire Water Services Limited and (2) Kelda Holdings Limited; Case 1630/7/7/23 Professor Carolyn Roberts v (1) Northumbrian Water Limited and (2) Northumbrian Water Group Limited; Case 1631/7/7/23 Professor Carolyn Roberts v (1) Anglian Water Services Limited and (2) Anglian Water Group Limited. The authors understand that, as of the date of this article, a further claim against Thames Water is in the process of being issued.

[8] See, for example: Ariel Ezerachi and Maurice Stucke, ‘The Fight Over Antitrust’s Soul’ (2017) 9 Journal of European Competition Law & Practice 1–2; and Konstantinos Stylianou and Marios Iacovides, ‘The goals of EU competition law: a comprehensive empirical investigation’, Legal Studies, 2022;42(4):620-648,

[9] Simon Holmes, ‘Climate change, sustainability, and competition law’, Journal of Antitrust Enforcement, Volume 8, Issue 2, July 2020, 354–405,; Joshua Sherman, ‘When Antitrust's Consumer Welfare Standard And ESG Collide’, Law360, 4 October 2021,
[10] OECD Secretariat, The Consumer Welfare Standard - Advantages and Disadvantages Compared to Alternative Standards - Background Note for the 140th meeting of the Competition Committee, DAF/COMP(2023)4,,%2C%202022%5B20%5D.
[11] Supra note 9.
[12] Konstantinos Stylianou and Marios Iacovides, ‘The goals of EU competition law: a comprehensive empirical investigation’, Legal Studies, 2022; 42(4):620-648,
[13] See Svend Albæk, Consumer Welfare in EU Competition Policy, Aims and values in competition law, 67-88, 2013,
[14] Simon Holmes, Nicole Kar, Lucinda Cunningham, ‘Sustainability and Competition Law in the United Kingdom’. In: Pranvera Këllezi, Pierre Kobel, Bruce Kilpatrick (eds) Sustainability Objectives in Competition and Intellectual Property Law (2024),
[15] EC Communication, Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-cooperation agreements (C(2023) 3445) dated 1 June 2023, 2023_revised_horizontal_guidelines_en.pdf (
[16] CMA Annual Plan 2020/21,, CMA Annual Plan 2021/22,, CMA Annual Plan 2022/23,, and CMA Annual Plan 2023/24: “supporting the transition to a net zero economy” as a medium-term priority,
[17] CMA Annual Plan 2024/25 consultation, at [5.13]
[18] CMA, Guidance on environmental claims on goods and services, 20 September 2021,
[19] See the CMA investigations into ASOS, Boohoo and Asda over sustainability claims in the fashion industry, (July 2022), and the investigation against Unilever in relation to its green claims over household essential items (December 2023),
[20] CMA, Green Agreements Guidance: Guidance on the application of the Chapter I prohibition in the Competition Act 1998 to environmental sustainability agreements, 12 October 2023, Unlike the EU Guidelines, the CMA Guidance has been published in stand-alone form, but is intended to supplement the CMA’s existing guidelines on horizontal agreements. The CMA makes it clear that where both sets of guidance apply to the same agreement, the parties to the agreement may rely on the relevant part of whichever of the two is the more favourable to them.
[21] CMA, Environmental sustainability and the UK competition and consumer regimes: CMA advice to the Government, 14 March 2022,
[22] Supra note 20, Green Agreements Guidance, page 38.
[23] In the EU context, businesses can submit requests to the EC for informal guidance regarding novel or unresolved questions on individual sustainability agreements under the EC’s Informal Guidance Notice Procedure (see paragraph 515 of the EC Guidelines). However, the information supplied could be used if the EC subsequently decides to open proceedings which relate to the agreement/practice in question, and there is no promise of immunity from fines (although in practice it is unlikely that the EC will open infringement proceedings in respect of arrangements that it has “cleared” (in the absence of material new facts)).
[24] CMA, Informal Guidance: Green Agreements Guidance ‘Fairtrade Shared Impact Initiative’ (21 November 2023),
[25] See, for example, Mark J. Roe, ‘Corporate Purpose and Corporate Competition’, SSRN, European Corporate Governance Institute – Law Working Paper No. 601/2021), April 6, 2021,
[26] Supra note 1.
[27] See, for a recent example, Diego Abellán Martínez and Pramuan Bunkanwanicha, ‘Good Faith Competition as a Natural Mechanism for Sustainable Economic Growth’, ESCP Impact Paper No 2021-31-EN,
[28] Research by CDP has revealed that reveals that 71% of all global GHG emissions since 1988 can be traced to just 100 companies, including ExxonMobil, Shell, BHP Billiton and Gazprom – see
[29] Supra note 1.
[30] The analytic framework for the assessment of objective necessity and proportionality arguments has developed through case law, as summarised in the EC Guidance on its enforcement priorities in applying Article 102 TFEU (2009/C 45/02).
[31] CMA, Environmental Sustainability Advice to Government: Call for Inputs,, at [24].
[32] The UK equivalent of Article 102 TFEU.
[33] CJEU, T-321/05, Astra Zeneca v EU Commission [2010 5 CMLR 28]. See also, in the context of the UK collective actions regime, Gutmann v First MTR South Western Trains Limited and Another [2022] EWCA Civ 1077.
[34] Supra note 1.
[35] Supra note 7, Cases 1603/7/7/23, 1628/7/7/23, 1629/7/7/23 and 1630/7/7/23: Professor Carolyn Roberts v Anglian Water Services Limited & others. See also the claims website

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