Sustainability and exclusionary abuse under Article 102 TFEU: navigating a developing EU framework
Victòria Reyes García et al.
What the paper says
This article examines how sustainability considerations could be meaningfully integrated in the enforcement of rules against exclusionary abuse under Article 102 TFEU. In light of the European Commission’s 2024 Draft Guidelines on Exclusionary Abuses – which barely address sustainability – the article considers three options for integration: (i) using sustainability as a factor in the assessment of market power and classification of dominance, (ii) defining non-sustainable conduct as potentially abusive exclusionary conduct and (iii) accepting sustainability-related objective justifications or efficiency defences. Drawing on the public consultation responses to the Draft Guidelines, the legal and economics literature and theory, and practical illustrations, the article argues that sustainability considerations can play a well-defined role in each of the three areas considered. However, it also highlights the remaining lack of clarity on the treatment of out-of-market effects (both harms and benefits) and the remaining risk of regulatory crowding-out and of dominant companies greenwashing their abuse with objective justifications.
Evidence weight
Balanced mode · F 0.40 / M 0.15 / V 0.05 / R 0.40
| F · citation impact | 0.50 × 0.4 = 0.20 |
| M · momentum | 0.50 × 0.15 = 0.07 |
| V · venue signal | 0.50 × 0.05 = 0.03 |
| R · text relevance † | 0.50 × 0.4 = 0.20 |
† Text relevance is estimated at 0.50 on the detail page — for your query’s actual relevance score, open this paper from a search result.