By Maria José Schmidt-Kessen, Central European University
This paper critically assess the impact of EU legislation that makes sustainability efforts for companies mandatory on the efforts under EU competition law to support the EU Green Deal Agenda. It can be considered as a starting point in trying to reconcile two trends: the sustainability turn in antitrust law and the rise of mandatory human rights and sustainability due diligence. After discussing the sustainability turn in EU antitrust law and similar developments at the level of EU Member States, the paper gives an overview over the structure and obligations imposed by the proposed EU Directive on Corporate Sustainability Due Diligence and comparable national frameworks. The paper then seeks to answer the question of how much room there is left for taking sustainability exceptions into account under EU competition law in light of mandatory human rights and sustainability due diligence obligations. The paper proposes to delineate the scope the sustainability defense under competition law along three parameters: the characteristics of the companies in question, the nature of the agreement or conduct in question, and the nature of the sustainability objective pursued.
