What do the protection of competition and sustainable development have to do with each other? What can competition agencies do to use competition law to also promote sustainability? Researchers at Heinrich Heine University Düsseldorf have investigated this issue on behalf of the Federal German Ministry of Economics and Climate Protection (BMWK). Their 284-page expert study "Competition and Sustainability in Germany and the EU" was presented in Berlin on 22 March 2023. From the Faculty of Law, Prof. Dr. Rupprecht Podszun, Director of the Institute for Competition Law, energy and international law expert Prof. Dr. Charlotte Kreuter-Kirchhof, Dr. Tristan Rohner and Philipp Offergeld were co-authors. The study was developed under the umbrella of the HHU Future Group “Competition & Sustainability”. Economists Prof. Dr. Justus Haucap, Prof. Dr. Rüdiger Hahn, Anja Roesner and Alexandra May also contributed.
Justus Haucap and Rupprecht Podszun presented the study in Berlin at the invitation of Sven Giegold, State Secretary at the Federal Ministry of Economics. The President of the Bundeskartellamt, Andreas Mundt, joined in the discussion. The presentation was led by Elga Bartsch, Head of Economic Policy at the BMWK. Professor Podszun emphasised at the presentation of the study: "Competition law is not the most important means to achieve more climate protection or more sustainability. But if we take the climate decision of the Federal Constitutional Court seriously, then we have to look in all areas at what contribution authorities and laws can make to more sustainability."
Currently, this is being discussed above all on the basis of so-called sustainability agreements: Are companies allowed to agree with other companies to jointly reduce CO2 emissions? What initially sounds like a welcome sustainability initiative is often viewed critically by cartel authorities such as the Bundeskartellamt: Companies should achieve their goals through competition, not through joint agreements. What starts as a sensible cooperation can end up being a consumer-damaging cartel under the guise of climate protection.
The first important finding of the experts: competition and sustainability are not mutually exclusive. The experts see the market economy as indispensable. They thus reject those who see a chance for sustainability only in a radical renunciation of consumption (“degrowth”). Without the incentive of competition, the new technologies that are needed for climate protection, for example, will not emerge. Nevertheless, the authors see some room for reform: For instance, it must be corrected that companies that produce in a way that is harmful to the environment profit from cost savings. The team of the HHU developed 34 concrete options to reform competition law in the study. They present the pros and cons and give insights to specific topics. The study does not make a recommendation - the Ministry first wants to consult with stakesholders and then decide.
However, competition authorities such as the Bundeskartellamt could in future gear their practice more towards the pursuit of sustainability goals. For example, practices of dominant companies that are harmful to sustainability could be prosecuted more severely, such as when monopolists play out their power and violate environmental protection standards. In such cases, higher fines would also be conceivable. At the same time, cooperation could be permitted to a limited extent, where it is currently still prohibited by antitrust law.
State Secretary Giegold promised to examine the options. They could be taken into account in a future amendment of the Act against Restraints of Competition.
The report is available here: