Sustainability agreements and Article 101(3) TFEU

This chapter discusses to what extent anti-competitive sustainability agreements can be exempted from the prohibition of anti-competitive agreements under Article 101 TFEU. The chapter demonstrates that older case law and decisional practice have allowed for different public interests to be considered relevant benefits under Article 101(3), but that the decentralization of the enforcement of Article 101(3) through Regulation 1/2003 together with the modernization process, and the principles of legal certainty and democratic legitimacy, indicate that only economic efficiencies should be considered relevant under the provision. It is then argued that the 2023 Horizontal Guidelines clarify the state of the law to some extent, and that sustainability benefits even as an externality can be relevant under certain circumstances, namely when there is a substantial overlap between the beneficiaries and the consumers on the relevant market.