Global governance through the market and sustainable development
Guy CanivetFirst Honorary President of the Court of Cassation
The concept of the market economy represents a system where decisions to produce, exchange and allocate scarce goods and services are mostly determined using information resulting from the confrontation of supply and demand as established by the free play of price competition 1 . According to liberal theory, this mechanism is the engine of economic growth, leading to a free and self-regulating market, in a globalized economy, depoliticized and free from any exogenous constraint, particularly economic, social and environmental 2 .
However, it appeared, from the 19th century, first in the United States and then in Europe, that the protection of free competition, a central principle of the market economy 3 , required the intervention of States to correct the market imperfections linked to the behavior of firms, when they hinder its proper functioning, whether these obstacles result from anti-competitive practices (cartels, abuse of dominant positions) or from excessive concentration. These State interventions are carried out within the framework of competition policy 4 .
In the mid-20th century, this liberal doctrine was supplemented by an analysis of market failures, at the origin of the theory of externalities, the theory according to which, through their activity, competing firms produce effects that provide to others, without monetary compensation, a utility or an advantage or, on the contrary, a nuisance or damage. Escaping from market logic, these externalities, especially when they are negative, require State intervention through regulatory policies 5 .
Supported by all the international organizations with an economic vocation 6 , a regulated market theory has thus gradually established itself on a global scale establishing a link between competition, competition policy and macroeconomic results, such as productivity, growth, innovation, employment and inequalities 7 . Assured of the validity of this model, these organizations encouraged States to adopt competition policies implemented by competition authorities and/or courts, in principle independent, in compliance with fundamental procedural guarantees, according to standardized regulations 8 regarded as essential for their participation in international trade 9 . Thus competition law, standardized and globally integrated by cooperation agreements 10 , has been established as a principle of global governance by the market 11 . Having supplanted collectivist or interventionist systems 12 , this model is now universal 13 . In a global market, capital, goods, services and labor are in a situation of global competition.
From the end of the 1970s, however, it appeared that, if this economic model allowed undeniable progress, it followed directions that the planet and its inhabitants could not sustain any longer in terms of development and environment. A World Commission on Environment and Development, set up in 1983 by the United Nations General Assembly, thus noted a double failure: both in development and in management of the environment.
According to the report of this Commission published in 1987 14 and widely documented by four years of work, with regard to development: “in terms of absolute numbers there are more hungry people in the world than ever before, and their numbers are increasing. So are the numbers who cannot read or write, the numbers without safe water or safe and sound homes, and the numbers short of woodfuel with which to cook and warm themselves. The gap between rich and poor nations is widening – not shrinking – and there is little prospect, given present trends and institutional arrangements, that this process will be reversed.” While “There are also environmental trends that threaten to radically alter the planet, that threaten the lives of many species upon it. including the human species.” In order to remedy this situation of planetary peril, this Commission proposed the adoption of so-called “sustainable development” policies allowing to meet “the needs of the present without compromising the ability of future generations to meet their own needs”.
As conceived by this report and the founding texts that followed it, sustainable development is based on integrated economic, environmental and social solutions that are the basis of economic models serving people and the environment, of environmental policies that contribute to progress; and of social approaches that promote economic dynamism and protect environmental heritage, while strengthening human rights, equality and sustainability 15 . While in its formulation, this concept may seem broad and vague, over time it has nevertheless become much more precise in its three-fold dimension, economic, social and environmental, as well as in the integration mechanisms that bind them together. Thus, the 2030 Agenda organizes around five pillars (planet, population, prosperity, peace and partnerships) 17 sustainable development goals 16 which are now sufficiently precise to guide and assess the policies of the signatory States 17 .
According to the market economy doctrine, environmental and social issues included in sustainability fall under externalities 18 . So that, in principle, the market and sustainable development follow different logics: the free play of competition for one, state intervention in various forms, mainly regulatory and fiscal, for the other. The question, then, is whether these regulatory policies are sufficient to offset the negative climatic, environmental and social consequences of the market economy 19 . The observation is unfortunately that of increasing inequalities, worsening poverty 20 , increasing hunger 21 , environmental degradation and accelerating global warming 22 . The questioning of our development model takes on a new dimension with the economic and social consequences of the global coronavirus pandemic 23 .
The dual approach, free competition and state regulation, is also a source of tension, insofar as the market economy and sustainable development are antagonistic: the private interest pursued by firms is opposed to the public interest of sustainability; the present time of immediate transactions on existing goods is opposed to the potential of future projects; ad hoc and anonymous exchanges on the market are opposed to transmission of knowledge and solidarity between peoples and towards the future generations; finally, the economic effects for private firms are opposed to the consequences on the common goods 24 .
According to the dominant opinion, the survival of the liberal economy requires, in fact, that these existential contradictions be resolved in order to avoid social explosion and climate catastrophe 25 . To this end, at the global level, various organizations, affirming in principle the compatibility of the market economy with the imperatives of sustainable development (1), are looking for techniques to take these imperatives into account in the application of competition law (2).
1. Affirmation of a principle of compatibility between market economy and sustainable development
In the political positions of these various State or inter-State organizations, the coexistence between the market economy and the objectives of sustainable development is based on the ambition of a new market doctrine 26 (A), mobilizing various fundamental conventional or constitutional principles (B) and by a new conception of consumer welfare as an essential objective of competition policies (C). As indicated by “The Green Deal for Europe” 27 , it is ultimately about giving ourselves the means to make the market economy sustainable 28 (D).
1.A. The ambition of a new market doctrine
From the 1990s on, the rise of social and environmental concerns pushed international organizations, the European Union, States and the institutions responsible for implementing competition policies to reduce these tensions, both in the field of antitrust and merger control and in that of State aids. The central idea is that a well-conducted and effectively implemented competition policy, depending on the economic, social and environmental situation of a country, should complement other government policies to support sustainable and inclusive growth and development. In particular, it is argued that competitive markets encourage companies to produce more cheaply, invest efficiently, innovate and adopt more energy efficient technologies, that this competitive pressure is a powerful incentive to use the limited resources of the planet efficiently and as a result that it complements the policies and rules for the protection of social and environmental equilibria 29 . The doxa is that competition policy contributes, by itself, to the effectiveness of green policies, or more generally, of sustainable development 30 . These are the ambitions taken up in various forms, by the United Nations with the Sustainable Development Goals (SDG agenda 2030) 31 , by the OECD 32 , through its studies and recommendations on sustainable development and competition policies, but also by the UNCTAD 33 , the IMF 34 , the World Bank 35 the WTO 36 and the ISO 37 . This is also the ambition of the European Union’s “green deal” action plan 38 . The same ambition is affirmed by certain States, including France, which is mobilizing to achieve the sustainable development goals of the Agenda 2030 39 , which constitutionalized its environmental protection policies 40 , has assembled a citizens’ convention to accelerate the fight against climate change 41 and has adopted a legislative framework to take into account the social responsibility of companies 42 . In this perspective, the national independent public and administrative authorities have published a working document on their role and their tools in the face of climate issues 43 . For its part, the French Competition Authority announced, when publishing its guidelines for the year 2020, that, through its decisions, it intended to take into account the requirements of sustainable development and in particular the environment 44 . In summary, competition policies have a role to play in supporting sustainability and in particular in protecting the environment. Ultimately it would be about achieving “inclusive competition”.
The realization of this new market doctrine is, however, subordinated to the relationship between competition law and the legal principles relating to sustainable development. Such a convergence can follow different logics: prevalence, reconciliation, balance, integration, articulation, consistency, consideration, cooperation or complementarity, support, etc., which determine different orientations in the relationship between the market and sustainability.
1.B. The mobilization of fundamental principles
In Europe, reorienting competition policy in consideration of the objectives of sustainable development consists first of all in examining the way in which sustainability, on the one hand, and competition, on the other hand, appear in the founding texts of the Union.
The framework of this relationship is given in the Preamble of the Treaty on European Union (TEU) “Determined to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields”.
The provisions of the treaties follow. On the one hand, environmental law is guaranteed by Article 37 of the Charter of Fundamental Rights of the EU, according to Article 3 of the TEU sustainable development is one of the objectives of the Union “based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment”; the social values of sustainable development are also affirmed by the same Article 3 of the TEU and specified in Articles 8 and 10 while Article 11 stipulates that the requirements of environmental protection must be integrated in the definition and the implementation of the policies and the activities of the Union, thus, in particular, in those aimed at promoting sustainable development. On the other hand, competition is one of the policies of the Union, the rules of which are laid down by Articles 101 et seq. of the Treaty on the Functioning of the European Union (TFEU), while its Article 7 prescribes the alignment of the fundamental principles, the objectives of the EU and the goals of its policies, including those on which sustainable development in the content of competition policy is based.
The articulation of these texts is a determining factor in the methods by which competition authorities and courts take into account the imperatives of sustainability. In terms of the hierarchy of norms, the normative power of the fundamental right to protect the environment and of the objectives of sustainable development as formulated by the treaties should prevail in the determination of the purposes of competition policy; which invites us to verify whether, as it stands, the Court of Justice has drawn all the consequences of this requirement for consistency between EU competition law and policies.
For France, the same approach would consist in checking the constitutionality of the rules relating to competition law contained in Articles L. 410-1 et seq. of the Commercial Code in light of the provisions of the Constitution relating to the protection of the environment and to the guarantee of social rights; an issue on which the Constitutional Council hardly expressed itself 45 . However, such an adjustment must not lead to the nullification of the EU competition rules.
1.C. The evolution of the goal of consumer welfare
In EU law as in national law, the essential instrument for aligning competition policy with the objectives of sustainable development is the search for consumer well-being. Although it is not cited either in the provisions of the TFEU relating to competition rules or in Titles II and III of Book IV of the Commercial Code, it is underlying the competition policy of which it is the essential, if not the exclusive, goal. A textual reference could however be found in Article 3 of the TEU which makes the “well-being of its peoples” one of the goals of the Union. Moving from the individual “consumer” to the collective “people” is moreover indicative of the current debate on the notion of consumer well-being 46 .
Based on perceptible signs of evolution of the notion of consumer welfare in the decisions of the Commission 47 and the case law of the CJEU as in those of the authorities and courts of the Member States 48 , a political debate has emerged as much on the nature of the well-being as on its beneficiaries 49 . Should it be exclusive or supplemented by the public interest? Reduced to the economic dimension of “consumer surplus” focused on prices or broadened to a qualitative vision open to social and environmental considerations 50 ? Should it be appreciated individually or collectively? Be extended to all people, and in particular workers, whose situation is impacted by the functioning of the market? Should it still be appreciated in the short term or in the long term, statically or dynamically?
The stakes are high, the dimension given to consumer well-being requires the ability of competition authorities and courts to integrate environmental protection and social balances into competitive reasoning. It would therefore be a logic of “integration” that would be at work. In this regard, various studies conducted under the aegis of the OECD devoted to the relationship between competition and the social dimension of sustainability and in particular social justice, the promotion of gender equality, poverty reduction, employment policies, the labor market or the protection of human rights, stress the need to broaden the notion of consumer welfare 51 .
1.D. Position of the EU Commission
What then of the position of the European Commission on the compatibility of competition policy with sustainable development? Regarding the climate and environmental dimension of sustainability, it is very clearly expressed in the definition of the framework of its call for proposals competition policy supporting the “Green Deal for Europe” 52 . After recalling the goal of this pact and summarizing how competition policy itself contributes to the effectiveness of green policies, the document defines the framework within which this contribution could be improved into a synthetic formula which includes five proposals. The logic of this compatibility is therefore clearly that of a “contribution” 53 .
The first two proposals are a restatement of the theory of externalities: “Competition policy is not in the lead when it comes to fighting climate change and protecting the environment”. and “There are better, much more effective ways, such as regulation and taxation”. The third suggests, however, an evolution of this theory: “Competition policy, however, can complement regulation and the question is how it could do that most effectively”. The relation would therefore be one of complementarity. The fourth proposal recalls the competence conferred on the Commission by the Treaties for this purpose: “The Commission is responsible for the enforcement of competition rules based on its competences under the Treaty and existing EU secondary legislation, under the close supervision of the EU Courts”. And it deduces, without affecting existing legislation, the limits of the contribution of competition policy to the Green Deal: “This means that, short of any changes in the existing legal framework, competition policy’s contribution to the Green Deal can only take place within these clearly-defined boundaries”. The remainder of the document indicates very logically that these limits are the techniques for implementing competition law which it is proposed to improve by possible modifications of the rules in force.
2. Techniques for taking sustainable development goals into account in competition policy
The current state of regulation thus requires examining the ability of traditional competition law enforcement techniques to serve sustainable development, both in the field of State aids and in that of antitrust and merger control 54 . Another approach to be considered is to “internalize externalities” in the competitive game by creating markets for environmental goods.
2.A. State aids
It is accepted that the control of State aids is carried out by means of a test balancing the negative effects of aid on trade and competition in the single market and its positive effects in terms of contribution to achievement of an objective of well-defined common interest 55 . The Commission indicates that the application of these rules aims in particular to encourage investments which make it possible to support the environmental and climate axes of sustainable development 56 . It adds that new guidelines are open to consideration which will serve as a basis for the establishment of a framework allowing Member States to contribute to the objectives of the transition to a green economy, while using as effectively as possible limited public funds 57 .
2.B. Antitrust rules
The law relating to cartels and abuse of a dominant position is naturally conducive to the confrontation of competition policy with policies of sustainable development in business strategy. So that the search for consistency between one and the others mobilizes all the techniques of antitrust law: exclusion from the application of competition law, exceptions and exemptions from this application. In this regard, certain peculiarities of abusive practices deserve special consideration.
1 – The exclusions
For a practice to be relevant to the relationship between competition policy and the objectives of sustainable development, it is obviously necessary that it falls within the scope of competition law. The question is classic: it is considered that an organization whose activity is exclusively dedicated to the protection of the environment, therefore of a non-economic nature, and which therefore is not a firm, escapes the application of competition law 58 . This is also the case for an organization whose purely social activities, meeting the requirements of national solidarity, are devoid of any profit-making purpose 59 .
2 – The exceptions
In the case of a firm, the agreements it enters into or the practices it implements may be exempt from the prohibitions and sanctions of Article 101, §1 of the TFEU, if they have neither the purpose nor the effect of reducing competition, if they are of minor importance, which could only very rarely be the case, or if they are totally imposed by State regulations, in particular of a social nature or for protection of the environment, which is less hypothetical 60 .
3 – The exemptions
Finally, although they are restrictive of competition, agreements and business practices can benefit from the exemptions provided for by Article 101, § 3 of the TFEU, if the social and environmental goals they pursue contribute, without absolute restriction of the competition, “to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit”. It is according to these criteria that, in consideration of their ability to direct technical or economic progress in the service of the objectives of sustainable development, so-called “environmental” or “sustainability” agreements, environmental labels and competitive compliance of markets resulting from environmental policies, in particular those of the selective treatment of waste or negotiable pollution permits 61 , are judged.
4 – Specificities of the abuse of a dominant position
In terms of abuse of a dominant position, the conditions under which public authorities may, in order to achieve an environmental goal, establish monopolies, grant exclusive rights 62 or create services of general interest 63 have been specified.
2.C. Merger control
In terms of concentration, the European regulation seems, on the other hand, less conducive to taking sustainability factors into account 64 and the guidelines specifying its application make no explicit reference to it 65 , no more than those of the French Competition Authority, which were however modified in 2020 66 . Although the Commission considers that the taking into account of extra-competitive factors is outside its competence 67 , it suggests, in the assessment of the efficiency gains projected by the concentration, a certain openness as to the indirect impact of expected climate and sustainability gains when they aim to foster investment and innovation 68 .
2.D. Internalization of external market effects
The internalization process aims to create a set of interconnected self-regulating markets where consumers, endowed with perfect information, would be able to make the most respectful choices vis-à-vis long-term objectives of sustainable development, such as global warming or environmental protection. The technique consists of defining homogeneous categories of goods that can be the subject of market transactions, guaranteeing the transparency of information on these goods and ensuring healthy and fair competition between market players. Such an extension of the market sphere concerns different areas: creation of natural resource markets and greenhouse gas emissions certificates, extension of the financial market through the introduction of information on the extra-financial performance of companies or invention of markets for “green” goods and services (eco-organizations) backed by information systems (eco-labels). The ability of these new markets to serve the goals of sustainable development is much debated. These initiatives also require public intervention to guarantee the goods traded as well as the value of the information provided to consumers, thereby creating a significant bureaucracy 69 . These new markets obviously do not escape the control of the competition authorities 70 .
2.E. Two pre-concluding observations
First observation: according to the techniques described the permissive application of competition law in consideration of the sustainable development goals pursued by firms is obviously complemented, in return, by a strict application when agreements, practices and concentrations tend, conversely, to obstruct social or environmental regulations such as, for example, restrictions on the development or deployment of clean technologies or restrictions on access to essential infrastructures controlling access to renewable energy sources 71 .
Second observation: in practice, the effectiveness of these new guidelines is measured by the decisions handed down by the Commission and by the case law of the Court of Justice. It is to improve its application that, on 13 October 2020, the European Commission published a call for contributions to a debate on how competition law could contribute to achieving of the goals of the Green Deal for Europe 72 . Such support depends just as much on the decisions and court judgments of the Member States, since, as in France, in many of these States the articulation of the legal principles of sustainable development with competition rules follows the same logic 73 .
In general, legal scholars and economists defending the market economy believe that, while competition law instruments are potentially sufficient to meet such a challenge, their application must, to this end, be significantly strengthened. Legal certainty would require, in particular, on the one hand, that the guidelines of European and national authorities clearly indicate the impact of sustainability on competitive reasoning, on the other hand, that new methods of regulating the market be harmonized, in order to allow companies, as they are now strongly encouraged 74 , to place their strategies at the service of a social and solidarity economy, without exposing themselves to the legal risk of sanctions or suffering a loss of competitiveness. In this perspective, the positions of the OECD are aimed, on the one hand, at a global development of competition policies and their adaptation to emerging countries. Its annual thematic world forums lead, on the other hand, to recommendations on the conditions under which these policies should be oriented towards the objectives of sustainable development by reducing inequalities, fighting against poverty, for economic equality of the sexes, for social justice, for a better functioning of the labor market, etc 75 .
It remains to be seen whether such an adaptation of competition policies is up to the existential threats of a social, environmental and now sanitary nature which the world is facing. If this were not the case, one solution would be to return to the theory of externalities in order to integrate social and environmental issues into competitive reasoning 76 . In this perspective, the competition authorities would have to carry out a synthesis between the free functioning of the market and regulatory policies, which would require new analysis models based on indicators measuring the social and environmental consequences of economic activity 77 . Either they succeed, or these competition authorities are themselves part of the problem 78 . Another option would be to abandon the dogma of economic development as the engine of the market economy 79 or, at the very least, to reconsider its instrument of measurement by gross domestic product 80 . Finally, certain currents of thought believe that sustainable development leads to a questioning of capitalism 81 .
This is the challenge that liberalism faces today in the face of increasingly active environmental and/or social groups 82 who are convinced – and militate in this direction – that vital issues for the planet, such as global warming, the explosive increase in social inequalities and the aggravation of poverty, condemn the foundations of the market economy 83 . They are encouraged to do so by the “fundamentalization” of legal principles for the protection of social and environmental rights to which economic activity would ultimately be subordinated. It would then be the objectives of sustainable development that would be the foundations of global governance 84 .
- R. Guesnerie, L’Économie de marché, Le Pommier, 2006.
- M. Friedman, Capitalisme et liberté, Flammarion, Champs Essais, 2016.
- Neoclassical market economics is based on the paradigm of pure and perfect competition; B. Guerrien, « Qu’est-ce que la concurrence parfaite ? », July 2017, accessible here: http://bernardguerrien.com/wp-content/uploads/2017/07/concurrence-parfaite.pdf.
- E. Combe, Economie et politique de la concurrence, 2ème éd. Dalloz, 2020.
- F. Aggeri. Marchés et développement durable. L’activité marchande sans le marché, Presses des Mines, pp.231-245, 2010 ; R. Coase, “The problem of social cost”, Journal of Law and Economics, 1960, 3, 1-44 ; E. Meade, “External Economies and Diseconomies in a Competitive Situation”, The Economic Journal, 1952, Vol. 62, No. 245 p. 54-67 ; R. Cornes et T. Sandler, The theory of externalities, public goods and club goods, Cambridge University Press, 1986 ; C Gollier, Le climat après la fin du mois, PUF, 2019.
- Research carried out by the International Competition Network (ICN) and other international organizations, for example the Organization for Economic Co-operation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD), initiatives taken by non-governmental organizations such as the Consumer Unity and Trust Society (CUTS) and, above all, by the most influential national competition authorities aim to promote understanding of the objectives, content and effects of competition policy on a global scale. For a reflection on this question, see: H. M. Hollman et W. E. Kovacic, “The International Competition Network: Its Past, Current and Future Role”, Minnesota Journal of International Law, vol. 20, 2011, pp. 274-323.
- P. Aghion, N. Bloom, R. Blundell, R. Griffith, & P. Howitt, “Competition and Innovation: an Inverted-U Relationship”, The Quarterly Journal of Economics, 120(2), 2005, pp. 701-728; P. Aghion, C. Antonin, S. Bunel, Le pouvoir de la destruction créatrice, Odile Jacob, 2020.
- UNCTAD Model Law on Competition (2010).
- See the negotiations within the World Trade Organization (WTO) on the interaction of trade and competition policy and the opposition between developed and developing countries; OECD, Global Forum on Competition: Competition Policy, Trade and the Global Economy: Elements contained in existing WTO agreements, commitments contained in regional trade agreements, current challenges and areas for reflection – Memo by R. D. Anderson, W. E. Kovacic, A. C. Müller and N. Sporysheva – 5 December 2019 : http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf.
- M. Rioux, Globalisation économique et concurrence (Memo). Études internationales, 33 (1), 2002, pp. 109–136 : https://doi.org/10.7202/704384ar.
- The meaning of the neologism “global governance” is inspired by the report on Global Governance of the French Economic Analysis Council, Documentation française 2002: https://www.cae-eco.fr/staticfiles/pdf/037.pdf (in French).
- According to WTO criteria, even China was recognized as a market economy in 2016. However, it is denied this status by Europe and the United States.
- The market economy, however, has variations depending on the contexts and institutions that support it. Alongside the market economy practiced in Anglo-Saxon countries, a “social market economy” has developed in Europe, inspired by ordoliberalism, while China describes itself as a “socialist market economy”; see R. Guénerie, above.
- Our Common Future. Report of the World Commission on Environment and Development presided by Gro Harlem Brundtland (“Brundtland report”), April 1987.
- T. Strange, A. Bayley, OECD Insights Sustainable Development Linking Economy, Society (2008). For a summary in French, see: https://www.oecd.org/fr/lesessentiels/41903232.pdf.
- Poverty eradication; fight against hunger; good health and well-being; access to quality education; gender equality; access to drinking water and sanitation; affordable, reliable, sustainable and modern energy; access to decent work; build resilient infrastructure, promote sustainable industrialization, and foster innovation; reduction of inequalities; sustainable cities and communities; sustainable consumption and production patterns; combat climate change; conserve and sustainably use the oceans and seas for sustainable development; sustainable use of terrestrial ecosystems; access to justice and accountable institutions; global partnerships for attainment of these goals: https://www.un.org/en/exhibits/page/sdgs-17-goals-transform-world.
- For France, see the Report on the objectives of sustainable development presented on the occasion of the voluntary national review of France at the High-Level Political Forum on Sustainable Development (July 2016, New York): https://sustainabledevelopment.un.org/content/documents/10726Report%20SDGs%20France.pdf.
- W. J. Baumol, W.E. Oates, The Theory of Environmental Policy, Cambridge University Press, 1988.
- F. Aggeri, op. cit.; OECD Global Forum on Competition Discusses Competition Under Fire: http://www.oecd.org/competition/globalforum/competition-under-fire.htm.
- World Bank studies show that while extreme poverty has been significantly reduced in emerging countries over the past fifty years, the conjunction of the Covid-19 pandemic, conflicts and climate change is likely to push again in extreme poverty a large number of people in precarious situations. According to preliminary estimates for 2020 that take into account the effects of the pandemic, between 88 and 115 million additional people would be affected, bringing the total number of people living in extreme poverty to 703-729 million https://www.banquemondiale.org/fr/topic/poverty/overview.
- The latest data from the joint FAO, WHO, WFP, Unicef, IFAD report (SOFI Report) published on July 13, 2020 shows that hunger continues to increase, while the planet globally produces sufficient food: according to 2019 data , even before the Covid-19 pandemic worsened the situation, 690 million people, or 8.9% of the world’s population, were underfed: http://www.fao.org/3/ca9692fr/online/ca9692fr.html.
- F. Aggeri, op. cit.
- L. Idot, “Covid-19 et droit de la concurrence”, Revue Europe, No. 4, April 2020, p. 6 ; OECD, Les réponses de la politique de la concurrence de l’OCDE face au COVID-19, April 2020 : http://www.oecd.org/coronavirus/policy-responses/les-reponses-de-la-politique-de-la-concurrence-de-l-ocde-face-au-covid-19.
- F. Aggeri, op. cit.
- F. Aggeri, op. cit. ; F. Aggeri and O. Godard, “Les entreprises et le développement durable”, Entreprises et Histoire, December 2006.
- M. Lafitte, « Développement durable et économie de marché », Revue Banque, February 2007.
- Margrethe Vestager uses the expression “greening competition policy” in her interview “Green Deal and competition policy” ; L. Peeperkorn, “Competition and Sustainability: What Can Competition Policy Do?”, Concurrences No. 4-2020.
- UNCTAD The role of competition policy in promoting sustainable and inclusive growth, July 2015.
- Margrethe Vestager, op. cit. This dogma is, however, discussed by environmental economists both in principle and in practice, see: F. D. Vivien, “Un panorama des propositions économiques en matière de soutenabilité”, O. Boiral, “Environnement et économie : une relation équivoque”, VertigO, November 2004.
- OECD 2008, “Réglementation environnementale et concurrence”, Revue de l’OCDE sur le droit et la politique de la concurrence, vol 9/2 ; Forums mondiaux de la concurrence, https://www.oecd.org/fr/concurrence/forum-mondial/ : Le genre et la concurrence (2018), la concurrence dans le marché du travail (2019), la concurrence et la démocratie sont-elles symbiotiques ? (2017), La promotion de la concurrence et la protection de droit de l’homme (2016), Les liens et les facteurs d’entraînement entre concurrence et emploi (2015), La Lutte contre la corruption (2014), La concurrence et la réduction de la pauvreté (2013).
- UNCTAD, The role of competition policy in promoting sustainable and inclusive growth, July 2015.
- IMF, Policies for Faster Growth and Poverty Reduction in Sub-Saharan Africa and the Role of the IMF, December 2000.
- The World Bank, Boosting Competition in African Markets Can Enhance Growth and Lift at least Half a Million People out of Poverty, 27 July 2016.
- WTO, Working Group on the Interaction between Trade and Competition Policy, Note by the Secretariat, The Fundamental WTO Principles Of National Treatment, Most-Favoured-Nation Treatment and Transparency (WT/WGTCP/W/127 of 7 June 1999; https://www.wto.org/english/tratop_e/comp_e/wgtcp_docs_e.htm).
- ISO, Guidelines Competition Law for Participants in the ISI Standards Development Process: https://www.iso.org/files/live/sites/isoorg/files/developing_standards/docs/en/competition_law_guideline.df.
- A European Green Deal. Striving to be the first climate-neutral continent: https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_en.
- France’s roadmap for the 2030 Agenda: https://www.agenda-2030.fr/sites/default/files/2019-09/4%20Page%20Livret_Sommet%20ODD%20-%20V2impression%20-%20ENGLISH.pdf.
- Constitutional law No. 2005-205 of March 1, 2005 relating to the Environmental Charter, Preamble: “the future and the very existence of humanity are inseparable from its natural environment … the environment is the common heritage of human beings… the preservation of the environment must be sought in the same way as the other fundamental interests of the Nation… in order to ensure sustainable development, the choices intended to meet the needs of the present must not compromise the capacity of future generations and other peoples to meet their own needs”. The French Constitutional Council deduces from this that the protection of the environment, common heritage of human beings, constitutes an objective of constitutional value (Decision No. 2019-823 QPC of 31 January 2020 Union des industries de la protection des plantes [Prohibition of production, storage and circulation of certain plant protection products).
- The Citizens’ Convention on Climate: https://www.conventioncitoyennepourleclimat.fr/en/.
- Art. 1833 of the Civil Code, amended by statute No. 2019-486 of 22 May 2019; Art. L. 225-102-1 of the Commercial Code. For an inventory of texts relating to CSR see (in French): La responsabilité sociétale des entreprises: https://www.ecologie.gouv.fr/responsabilite-societale-des-entreprises.
- Independent public and administrative authorities published a working document on their role and tools in the face of climate issues, 5 May 2020 (in French); Paris agreement and climate emergency: regulatory issues, Autorité de la concurrence, AMF, Arcep, ART, CNIL, CRE, CSA, HADOPI.
- The Autorité de la concurrence announces its priorities for 2020: https://www.autoritedelaconcurrence.fr/en/press-release/autorite-de-la-concurrence-announces-its-priorities-2020.
- However, see decision No. 2019-823 QPC of 31 January 2020, cited above, by which the Constitutional Council requires the legislature to ensure the reconciliation of the objectives of constitutional value of environmental protection and health protection with the exercise freedom of entrepreneurship.
- S. Holmes, “Consumer welfare, sustainability and competition law goals”, Concurrences, mai 2020, p. 1.
- See for example the decision of the EU Commission of 24 January 1999 (case IV.F.1 / 36.718 – CECED) b) in which the Commission examines the collective environmental benefits of an agreement (points 55 à 57).
- S. Holmes, op. cit.
- F. Marty, “Le critère du bien-être du consommateur comme objectif exclusif de la politique de concurrence. Une mise en perspective sur la base de l’histoire de l’antitrust américain”, Revue internationale de droit économique, vol. t. xxviii, no. 4, 2014, pp. 471-497 ; Senate, Information report No. 603 (2019-2020) by MM. A. Chatillon and O. Henno, made on behalf of the Committee on European Affairs and the Committee on Economic Affairs, filed on 8 July 2020 – Recommendation No. 3: “Systematically clarify the components of the criterion of” well-being of the consumer”against which the European Commission analyzes mergers and anti-competitive practices. See for example decisions 94/986/CE of 21 December 1994, Philips/Osram and 2000/475/CE of 24 January 1999, CECED: “The Commission should also initiate work relating to the integration of new components in this criterion, such as competitiveness, maintaining jobs, protecting the environment, protecting personal data or digital sovereignty”.
- E. Le Noan, C. Bertin, “Faut-il sauver le bien-être du consommateur ?”, Concurrences, Feb. 2019, pp. 2-5.
- See reports and recommendations from global competition forums since 2014, op. cit.
- Margret Vestager, The Green Deal and competition policy, Renew Webinar, 22 September 2020 ; EU Commission, Competition Policy supporting the Green Deal. Call for contributions.
- The French translation of the document uses the term “appui”.
- In environmental law the question is not new. For the last twenty years, the relationship between environmental law and competition law has been the subject of abundant case law and has given rise to numerous studies. See in particular: DGCCRF, Droit de l’environnement et droit de la concurrence, atelier de la concurrence du 6 juillet 2005 (ed. J.-M. Cot and L. Idot), Rev. Conc. cons., No. 147, July-Sept. 2006, accessible here (in French) ; L. Idot, “Droit de la concurrence et protection de l’environnement, La relation doit-elle évoluer ?”, Concurrences, sept. 2012.
- P. Thieffry, Droit de l’environnement et droit de l’Union européenne et du climat, Bruylant, 4ème ed. 2020 ; CJUE, 22 sept. 2020, Hinkley Point, aff. 594/18 P, Autriche/Commission.
- See Guidelines on State aids for environmental protection of 3 Apr. 2008; C. Giolito, chron. “Aides d’État”, Concurrences, May 2008, p. 137; L. Idot, Droit de la concurrence et protection de l’environnement, op. cit.; These guidelines were replaced in 2014, Guidelines on State aids for environmental protection and energy for the period 2014-2020, OJ C 200, 28.6.2014, p. 1–55. They were to expire in 2020, but they have been extended until the end of 2021 (Communication from the Commission concerning the prolongation and the amendments of the Guidelines on Regional State Aid for 2014-2020. OJ C 224, 8.7.2020, p. 2–4) ; Adde, O. Peiffert, L’application du droit des aides d’Etat aux mesures de protection de l’environnement, Bruylant, coll. Droit de l’Union européenne, 2015. On the case law of the Court of Justice, see: CJCE, 20 November 2003, Gemo, aff. C-126/01, Rec. CJCE, p. I-13769, Europe, January 2004, comm. L. Idot, no 22. CJCE, 8 November 2001, aff. C-143/99, Rec. CJCE, p. I-8365, Europe, January 2002, comm. L. Idot, no 28; CJCE, 13 March 2001, Preussen Elektra AG, aff. C-379/98, Rec. CJCE, p. I-2099, Europe, May 2001, comm. M. Pietri No. 163 and L. Idot, No. 182. CJCE, 13 January 2005, Streekgewest Westelijk, aff. C-174/02, n.e.p.; 13 January 2005, F.J. Pape aff. C-175/02, n.e.p., Europe, March 2005, comm. No. 92.
- EU Commission, Competition Policy supporting the Green Deal, op. cit.
- ECJ, 18 May 1997, Diego Cali, aff. C-343/95, Rec. ECJ, I, p. 1547.
- ECJ, 17 February 1993, Poucet and Pistre, case No. C-159/91 and C-160/91, rec. p. I-637; L. Idot, « La notion d’entreprise en droit de la concurrence, révélateur de l’ordre concurrentiel », Concurrences, May 2006.
- J. Nowag, A. Toerell, “Beyond Balancing: Sustainability and Competition”, Concurrences, November 2020.
- L. Idot, “Droit de la concurrence et protection de l’environnement, La relation doit-elle évoluer ?”, op. cit., which does a thorough analysis of the relevant case law. See in particular the guidelines on the applicability of Article 101 of the TFEU to horizontal cooperation agreements, OJ C 11/1 of 14.1.2011 (Guidelines on horizontal cooperation), p. 280 to 283 and p. 293 and Commission Regulation (EC) No 330/2010 of 20 April 2010 on the application of Article 101 (3) of the TFEU to categories of vertical agreements and concerted practices.
- ECJ, 23 May 2000, FFAD, case C-209/98, Rec. CJCE, I, p. 3743.
- L. Idot, “Droit de la concurrence et protection de l’environnement, La relation doit-elle évoluer ?”, op. cit.
- J.-M. Cot, “Concurrence et environnement : approche en droit des pratiques anticoncurrentielles et des concentrations”, Atelier de la concurrence, prec., sp. No. 41 et s.
- Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings (2008/C 265/07).
- The Autorité de la concurrence publishes its new guidelines regarding merger control: https://www.autoritedelaconcurrence.fr/sites/default/files/Lignes_directrices_concentrations_2020_EN_adlc.pdf.
- EU Commission, Art. 8, §2 R.139/2004 of 21 March 2018, Bayer/Monsanto, M.8084.
- EU Commission, Competition Policy supporting the Green Deal, op. cit., Part 3, merger control.
- For an analysis of these internalization techniques see F. Aggeri, op. cit.
- L. Idot, “Droit de la concurrence et protection de l’environnement, La relation doit-elle évoluer ?”, op. cit.
- EU Commission, Competition Policy supporting the Green Deal, op. cit.
- L. Idot, « Droit de la concurrence et protection de l’environnement, La relation doit-elle évoluer ? », op. cit.
- J. Nowag, A. Toerell, « Beyond Balancing: Sustainability and Competition », op. cit. ; F. Aggeri and O. Godard, « Les entreprises et le développement durable », Entreprises et Histoire, Dec. 2006, pp. 6-19.
- OECD Global Forum on Competition, op. cit.
- The Burndtland report (op.cit., pt. 26) calls for the incorporation of sustainable development goals into all economic policies: “Sustainable development objectives should be incorporated in the terms of reference of those cabinet and legislative committees dealing with national economic policy and planning as well as those dealing with key sectoral and international policies. As an extension of this, the major central economic and sectoral agencies of governments should now be made directly responsible and fully accountable for ensuring that their policies, programmes, and budgets support development that is ecologically as well as economically sustainable.”
- See, for example, in Environment and economic perspectives 2012/4, the dossier: « Environnement et développement économique, Reflets et perspectives de la vie économique », 2012/4 (Tome LI), pp. 5-8.
- Intervention of A. Tyrie, Chairman of the UK Competition and Markets Authority at the OECD Global Competition Forum on Social Justice: “How can competition contribute to fairer societies?”.
- J.E. Stiglitz, A.K. Sen, J.-P. Fitoussi, Report by the Commission on the Measurement of Economic Performance and Social Progress, 2009; G. Kallis, C. Kerschner, J. Martinez-Alier, “The economics of degrowth”, Ecological Economics, 2012; E. Laurent, Sortir de la croissance, Les liens qui libèrent, 2019 ; S. Latouche, La décroissance, Que sais-je ?, 2019.
- J.E. Stiglitz, A.K. Sen, J.-P. Fitoussi, op. cit. ; A. Pottier, « Les nouveaux indicateurs de richesse modifieront-ils la croissance ? », Le Débat, (2), 2018, pp. 147-156 ; OECD, Competition and macroeconomic outcomes factsheet, 2014.
- C. Beaurain, M. Maillefert and O. Petit, « Capitalisme raisonnable et développement durable : quels apports possibles à partir de l’institutionnalisme de J. R. Commons ? », Revue Interventions économiques, 2010 ; B. Zuindeau, « Le développement durable est-il soluble dans le capitalisme ? », Revue de géographie et aménagement, 2006.
- ATTAC, Contre la dictature des marchés, La Dispute-Syllepse-VO Éditions, 1999.
- OECD, Global Forum on Competition Discusses Competition Under Fire, op. cit.
- W.-H. Joke, « La gouvernance au service du développement durable dans le contexte de la mondialisation », Reflets et perspectives de la vie économique, 2002/1 (Tome XLI), p. 19-33.
To cite the article
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