Master Thesis LLM European Competition Law and Regulation – Faculty of Law 2021 – 2022

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Master Thesis

LLM European Competition Law and Regulation – Faculty of Law 2021 – 2022

ENVIRONMENTAL SUSTAINABILITY AND MERGER REGULATION, A PEACEFUL CO-EXISTENCE.

Aodhfinn Broderick aodhfinn.broderick@uva.nl

13924125

Thesis supervisor: Dr. Wybe Douma

Word count including footnotes but excluding bibliography: 12,415

Amsterdam, 1st July 2022

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Abstract

The question that this Thesis wishes to address is: ‘To what extent is the current European Merger Regime fit to assist the EU in reaching its climate commitments, under the European Green Deal?’ A statement was made by the Commission that the EUMR is “broadly fit for purpose” to tackle the climate challenges and meet the goals set by the European Green Deal.

This Thesis examines just how true this statement is, by looking at three elements of the European Merger Regime and its enforcement mechanism. Each of the three elements will be examined as to whether they are or in fact, are not ‘fit for purpose’. In the event that an element of the European Merger Regime is deemed not ‘fit for purpose’ suggestions will be made as to how this element may be adapted so that the EUMR may more readily assist the EU in reaching its Green Deal goal of climate neutrality by 2050. Finally, this Thesis addresses the discussion as to what role competition law should play in the fight against climate change.

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Table of Contents

1. Introduction ... 4

1.1 Why Competition Law? ... 4

1.2 Outline of the Structure to this Thesis ... 7

2. The Theory of Harm. ... 9

2.1 Introduction ... 9

2.2 A Reappraisal of the Market Definition ... 11

2.3 Additional Elements ... 14

2.4 Summary ... 15

3. Merger Efficiencies ... 16

3.1 Introduction ... 16

3.2 Article 2 EUMR ... 17

3.2 The Three Criteria ... 18

3.3 Fair Share for the Consumers ... 19

3.3.1 What Constitutes a Fair Share? ... 19

3.3.2. The Relevant Consumer Group ... 21

3.3.3. The Time Frame for Efficiencies to Materialize ... 24

3.4 Verifiability ... 26

3.5 Summary ... 29

4. Public Policy Defence ... 30

4.1 Public Policy Defences in Member States ... 30

4.2 The Oceanic Way ... 32

4.3 Article 21(4) EUMR ... 33

4.4 Summary ... 35

5. Criticism of Green Considerations in Merger Control ... 36

6. Conclusion – A Sustainable Future ... 38

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Bibliography ... 40

Legislation ... 40

Case Law/ Decisions ... 40

Publications ... 41

Secondary Law ... 43

Soft Law ... 43

Websites ... 43

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List of Abbreviations

EUMR – European Union Merger Regulation.

TFEU – Treaty on the Functioning of the European Union.

CFR – Charter on the Fundamental Rights of the European Union.

ACM – Autoritiet Consument & Markt (Dutch Competition Authority).

HCC – Hellenic Competition Commission (Greek Competition Authority).

NCA – National Competition Authority.

GCLC – Global Competition Law Conference.

OECD – Organisation for Economic Co-operation and Development.

FCO – Foreign and Commonwealth Office.

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1. Introduction

1.1 Why Competition Law?

This Thesis will address the unavoidable issue about how the European Merger Control Regime could and should interact with sustainability1 in the near future. However, many critics have argued that it is not the place of competition law to incorporate sustainability concerns into their enforcement policies. That is why before discussing the substance of this thesis, it is necessary to answer why it is necessary that competition law, and by extension merger control should play a role in helping Europe become carbon neutral by 2050.

Climate change is affecting almost every aspect of our lives at an increasingly alarming rate, from climate disasters, such as hurricanes and flash flood, to air pollution and food shortages.

As was soberingly pointed out in a report by the European Environmental Agency one in eight deaths of Europeans are linked to pollution which is only one of the many dangers posed by climate change.2 Humanity currently sits at a pivotal point as to whether we act now to reduce climate change or allow climate change to cause irreparable damage to our planet.

Therefore, the European Union must urgently deploy all instruments available to it, to minimise the effects of climate change and ensure a more sustainable future for our planet.

This level of urgency has been echoed throughout the EU institutions and as a result the EU launched its new ‘European Green Deal’, in December 2019, in which Member States commit to reduce emissions by at least 55% by 2030, compared to 1990 levels, and turn the EU into the first climate neutral continent by 2050.3 For these ambitious carbon reducing goals to be realised, immediate and effective action from all stakeholders and from all

industries throughout the EU is required. This is underscored by the European Commission’s Executive Vice-President Margrethe Vestager’s comments at the Global Competition Law Centre (GCLC) Conference on Sustainability and Competition Policy, where she said that,

1 Sustainability has been defined by the OECD as being “the practice of future-focused development, to ensure future generations will have access to the resources needed to meet their needs. While environmental protection is what many would associate with sustainability, it can extend to include issues of inequality, food security, responsible consumption, and labour rights.” (https://one.oecd.org/document/DAF/COMP/WD(2020)62/en/pdf).

This Thesis when mentioning sustainability will focus solely on the environmental aspect.

2 Kate Abnett, ‘1 in 8 deaths in Europe are linked to Pollution, says EU’ (World Economic Forum, 09 September 2020), <https://www.weforum.org/agenda/2020/09/carbon-emissions-european-union-health/>

accessed on 14th April 2022.

3 European Commission, Communication 11th December 2019, ‘the European Green Deal’ COM (2019) 640 final.

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“Every one of us – including competition enforcers – will be called on to make our contribution [to tackle climate change].4

The EU Commission has thus recognised the ability of competition law, namely Article 101 TFEU, as a tool to contribute to these climate goals.5 However, it has been less enthusiastic in using merger control6 as a tool to fight climate change, with only faint calls for sustainability to be considered in the area of ‘Green Killer Acquisitions’.7 While the Commission believes that Green Killer Acquisition policies do have the potential to significantly affect how sustainability is considered in the area of merger control8, the Author of this Thesis believes that policy makers must become more ambitious and strive to unlock the true potential that merger regulation has to offer in the push to realize the goals of the ‘European Green Deal’.

It has been said that the European Commission has recognised the potential for competition law to tackle climate change, but is there a legal basis for the consideration of sustainability in a competition and by extension a merger regime? It is incumbent on all competition enforcers to incorporate sustainability concerns into their competitive assessment and in the assessment of any concentration9 under the European Union Merger Regulation10 (hereinafter referred to as EUMR), due to the constitutional value of the protection of the environment by virtue of the Treaty on the Functioning of the European Union11 (hereinafter referred to as TFEU) and the Charter of Fundamental Rights of the European Union12 (hereinafter referred to as CFR). Under European Law any legally binding instrument which has constitutional status, such as the CFR and TFEU, must have its legal provisions considered when implementing European Secondary Law, such as the EUMR. Both Article 11 TFEU and Article 37 CFR require the Union to integrate environmental protection into the

4 Executive Vice-President Margrethe Vestager, ‘Competition Law and Sustainability’ (Brussels 24th October 2019), <https://ec.europa.eu/newsroom/comp/items/661165> accessed on 24th January 2022.

5 Ibid.

6 On a procedural point European Merger Control is used when two undertakings propose any concentration that meets the required threshold of the European Commission, the Commission will then assess the concentration based on factors laid out in the EUMR to determine if it should be permitted or not, so as to ensure and preserve effective competition on the Internal Market.

7 Executive Vice President Margrethe Vestager, ‘Competition Policy in Support of the Green Deal’, IBA Competition Conference, 10th September 2021, <https://ec.europa.eu/commission/commissioners/2019- 2024/vestager/announcements/competition-policy-support-green-deal_en> accessed on 29th January 2022.

8 Ibid.

9 A concentration is taken to mean the legal combination of two or more firms by merger, acquisition or through a Joint Venture, <https://eur-lex.europa.eu/EN/legal-content/glossary/mergers.html>.

10 European Union Merger Regulation, OJ L 24, 29.1.2004, p. 1–22.

11 Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012, p. 47–390.

12 Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391–407.

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implementation of all its policies. Therefore, European Union Merger Regulation by its very nature of being an EU area of action must consider factors which contribute to environmental protection.

Moreover, it was mentioned in recital 23 of the EUMR that, “the Commission must place its appraisal within the framework of the achievement of the fundamental objectives referred to in … Article 2 of the Treaty of the European Union”. Therefore, when Article 2 TEU, which mentions Human Rights13, is read with Article 37 of the Charter of Fundamental Rights14, dealing with the environment, we understand the EUMR must be read inter alia in light of environmental protection objectives.

Finally, despite there being certain Member States who outspokenly disapprove of

incorporating sustainable concerns into an EU Merger Regime, which will be discussed in more detail in Chapter 5 of this Thesis, there is a growing trend of Member States taking the initiative and developing merger regimes which accommodate sustainability concerns within their own national merger policies, such as Germany or the Netherlands and Greece.15 This trend is a welcomed development, for multinational corporations considering incorporating sustainability concerns into their future business operations or potential concentrations.

However, this may cause uncertainty, particularly where clearance is required across jurisdictions of Member States with different approaches to sustainability arguments.

Therefore, it is incumbent on the EU to reduce this legal uncertainty by adopting a

sustainable approach to European merger enforcement policy, allowing undertakings to avail of a ‘one stop shop’ approach.

This surge in Member States incorporating sustainability concerns into their merger regime comes as no surprise, as concentrations have a significant impact both in a positive and negative sense on the environment. With regards to negative impacts, mergers may cause a decrease in competition to the market and thus reduce innovation in the green sector.

13 Article 2 Treaty on the European Union OJ C 236, 7.8.2012, p. 17–17 – “The Union is founded on the values of respect for human dignity, … and respect for human rights”.

14 Article 37 Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391–407 “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.

15 The Netherlands and Greece have published reports and advocating for sustainability concerns to be incorporated into the competitive assessment by competition authorities. The reports will be discussed below.

Germany has unique laws that affect concentration which will be discussed below.

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Moreover, they may encourage over-consumption by consumers through lower prices of goods and services. Alternatively, mergers may produce significant positive environmental effects, such as increased innovation through Joint Ventures in green technologies or through a more efficient use of natural resources as a result of increased economies of scale and economies of scope. These positive and negative impacts resulting from mergers further demonstrate why it is necessary that European merger enforcers take a positive and active role in becoming more cognizant of these externalities and give space for them to be assessed in a merger analysis.

This section has discussed why it is on the onus of competition enforcers to incorporate sustainability factors into its enforcement of merger regulation and why environmental externalities are relevant for a merger assessment. A brief section will be dedicated to outlining the structure of this thesis before analysing to what extent the current EU Merger Regime may assist the EU in its pursuit of the goals under the European Green Deal

1.2 Outline of the Structure to this Thesis

The research question which this Thesis seeks to address is:

‘To what extent is the current European Merger Regime fit to assist the EU in reaching its climate commitments, under the European Green Deal?’

The Commission at a conference on Competition and the Green Deal believes that its Merger Regime is, “broadly fit for purpose”16, in accommodating these sustainability considerations.

This Thesis will therefore look at the EUMR and the related merger enforcement policies of the Commission to see just how ‘fit for purpose’ the European Merger Regime is to realise the climate commitments under the Green Deal. The Author of this Thesis believes that certain areas of the EU Merger Regime are more readily adapted to take on sustainability considerations than others and the Thesis will therefore critically assess if certain areas of the Merger Regime are ‘fit for purpose’ and if not, how the elements may be adapted.

16 Markus Röhrig, Lukas Ritzenhoff and Malcom Tiffin-Richards ‘Green Deal and Merger Control Sustainability – A Killer Deal Rationale’, March 2021,

<https://www.hengeler.com/fileadmin/news/Newsletter/2021_03_BRX.pdf> accessed on 22nd January 2022.

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To properly address the question of how ‘fit for purpose’ the EU Merger regime is, this Thesis will firstly look at the ‘Theory of Harm’ element that is present in a merger assessment with reference to the Significant Impediment to Effective Competition test (hereinafter referred to as the SIEC test). Secondly, the ‘Merger Efficiencies Defence’ under Article 2 EUMR will be addressed, which allows for an efficiency defence in the context of a concentration which improves economic and technological sustainable development,

referring to the three criteria required by the Commission to avail of the ‘Merger Efficiencies Defence’. Finally, this Thesis will discuss the Legitimate Interest Defence offered by the EUMR under Article 21(4). Each element of the merger analysis will be assessed as to how, if at all, they may more readily consider environmental considerations and thus whether they are fit in assisting the EU realise the Green Deal. This assessment will be done through comparative research from other merger control regimes. Furthermore, given the lack of primary law from the Commission’s behalf, heavy reference will be made to academics who have wrote on relevant areas this Thesis will touch upon.

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2. The Theory of Harm.

2.1 Introduction

The first element of the EUMR that this Thesis will address is the area of the ‘Theory of Harm’ analysis. Before discussing how fit this area is in considering sustainable concerns, it is important to outline exactly what the ‘Theory of Harm’ element entails.

Under the current European Merger Regime concentrations are subjected to an analysis by the Commission as to whether the proposed concentration would produce a sufficient amount of harm to the extent that it would constitute a significant impediment to effective

competition (known as the ‘SIEC’ test). Once the analysis is completed the Commission will determine whether or not the proposed concentration can take place. This analysis takes into account various factors which include among others: the presence of (or lack thereof) undertakings on the market on which the proposed concentration would take effect on, market shares held by the parties; the degree of substitutability of products in the same market in the eyes of consumers17, and countervailing buyer and supplier power.18 For the purpose of the sustainable ‘Theory of Harm’, this Thesis will focus on concentration levels and the market definition process that goes into the assessment of concentration levels.

Why exactly does the Commission carry out a ‘Theory of Harm’ assessment? The SIEC test ensures that there are high levels of competition on the market and therefore by extension, that high levels of innovation exist on the market. Innovation is the sine qua non of the Green Economy, without innovation in green technology and thus less energy efficient and cutting- edge technology, the goals set by the European Green Deal would simply not be attainable.

But just how fit is the ‘Theory of Harm’ element in assisting the EU reach these Green Deal goals by protecting this necessary innovation on green markets and also preventing

concentrations which produce more general negative effects to the environment, such as more greenhouse gas emissions?

17 In essence, a Cross Price Elasticity of Demand test.

18 Article 2, European Union Merger Regulation OJ L 24, 29.1.2004, p. 1–22.

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Traditionally, the Commission had been reluctant to incorporate negative externalities into its SIEC test, as was demonstrated in a letter19 published by Executive Vice-President Margrethe Vestager to stakeholders concerned about the negative environmental externalities that would result from the proposed Bayer/ Monsanto20 deal. In her letter Executive Vice-President Vestager stated that environmental concerns are not dealt with by Competition Authorities.

However, she stressed that innovation in these industries, in this case the production and development of seeds and pesticides, shall be dealt with by DG Comp.

Despite this, the position has seemed to shift, as previous decisions made by the European Commission offer strong support that it is eager to incorporate a sustainable ‘Theory of Harm element, into its analysis of whether to clear a concentration or not. The most notable

example of willingness by the European Commission to consider a sustainable ‘Theory of Harm’ is the case of Aurubis/ Metallo.21 Here, the concern was that a merger of two US purchasers of copper scrap would result in increased buyer power and thus a reduction in the price of the material. This in turn would mean that there would be less of an incentive for the supply chain to collect it and lead to higher CO2 emissions. While innovation is not the main concern of the Commission in Aurubis/ Metallo22, it does provide a concrete precedent that harmful environmental externalities, such as higher CO2 can and do form part of the Commission’s SIEC analysis in certain circumstances.

However, given the illusive and obscure nature of harmful environmental externalities and often the small undertakings that are involved on the market, there runs a risk that the negative externalities cannot be given the effective weight they need to ensure no

concentration produces harmful environmental effects. Thus, in order for the Merger Regime to be ‘fit for purpose’ and ergo help attain the goals set out in the European Green Deal, a sustainable element to the market definition process must be present.

19 Executive Vice-President Margrethe Vestager, Letter to Petitioners, 22 August 2017,

https://ec.europa.eu/competition/mergers/cases/additional_data/m8084_4719_6.pdf, accessed on 14th March 2022.

20 Bayer/ Monsanto, (Case M. 8084), Commission Decision, 29th May 2018.

21 Aurubis/ Metallo Group Holding, (Case M. 9409), Commission Decision, 4th May 2020.

22 Ibid.

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2.2 A Reappraisal of the Market Definition

As mentioned above, under the SIEC test, the Commission will look at the possible concentration levels in the market that would exist if the concentration was approved. The steps of defining the relevant market in the Commission’s analysis are therefore of pivotal importance as they determine whether a transaction leads to low levels of concentration on the relevant markets and thus a reduction in competition, which in turn would lead to a reduction in innovation. The Commission should possess a market definition process that takes into account sustainability factors in determining whether consumers consider green or

“fair trade” products substitutable with other products. Such an analysis could lead to the identification of narrower markets, which green products operate on and it would thus be easier for the Commission to establish a significant impediment of effective competition, on these green markets. In essence, narrowing markets into ones that concern sustainable products will allow the negative externalities and potential harm to innovation to be shown more easily, and result in those concentrations being prohibited ergo preventing damage to the environment.

If there was to be a narrow market for green products there would need to be a consumer preference which mirrors this. A report published by Haller23 et al. perfectly highlights the shift in consumer preferences towards more sustainably geared products and services. This report has shown that the green characteristics of these goods and services are increasingly representing a distinguishing factor from conventional products in the eyes of consumers. It was found that almost 60% of consumers would change their purchasing habits to meet environmental goals.24 Given that the market definition process relies heavily on consumer preference, this shift in consumer preference may have the effect of creating separate markets for sustainable goods and services that would have previously been deemed as belonging to a much wider market.

As shown in the paragraph above, there is a shift in consumer preference towards more sustainable goods. Therefore, we can also see an increase in the initiative of some European

23 Karl Haller, Jim Lee and Jane Cheung, ‘Meet the 2020 Consumers Driving Change’ (IBM, June 2020),

<https://www.ibm.com/downloads/cas/EXK4XKX8>, accessed on 20th February 2022.

24 Ibid at page 1

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Member States, notably Portugal, to adapt to this shift. In the case of Aviagen/ Hubbard25 the Portuguese Competition Authority considered sustainability factors when defining the market of slow-growth chickens. In light of this case and following the emerging policies of Member States to define markets in the context of sustainability, there is some emerging precedents which show the Commission following suit by starting to recognize the importance of redefining markets more narrowly in the context of sustainability.

The first such precedent from the Commission’s behalf dates back as early as 1992 and is that of Rhone Poulenc Chimie/ SITA26, where the Commission considered the waste and

environmental regulations that France had in place at the time, in the market of chemical disposal and therefore more narrowly defined the market than it would with conventional waste incineration. Similarly, in Suez Lyonnaise des Eaux/ BFI27, the Commission separated the markets that concerned the treatment of normal waste and markets concerning the treatment of special industrial waste, due to the environmental impact that special industrial waste could potentially cause. While these cases do not necessarily deal with consumer preference, they mark the start of the Commission’s practice of defining markets through a sustainable veil, consumer preference becomes relevant in the court judgements from 2015 on.

In 2015 there was a renewed push by the Commission to define markets in a more sustainably friendly way, however this time the Commission makes explicit reference to consumer

preference in determining the relevant market in its decision of DEMB/ Mondelez.28 DEMB concerned a concentration between two coffee producers. Here, the Commission

distinguished between ‘conventional’ and ‘non-conventional’ coffee, such as coffee produces through more sustainable methods, while the Commission’s analysis in this case concluded that conventional and non-conventional coffee were substitutable products, the Commission has, in this ruling, established a concrete precedent that sustainable markets will be

25 Augustina Hermida, ‘When Green Meets Merger Control’ (European Commission Competition Policy Brief, Issue 3, December 2021), Page 17, <https://ec.europa.eu/competition-policy/system/files/2021-

12/Competition%20Policy%20Brief%203-

2021_Students%20challenge%202021%20greening%20competition_kdak21003enn.pdf> accessed on 11th January 2022.

26 Rhone Poulenc Chimie/ Sita, (Case IV/ M. 266), 26th November 1992, paragraph 24.

27 Hans Vedder, ‘Competition Law and Environmental Protection in Europe; Towards Sustainability?’ Europa Law Publishing, 2003, Page 228.

28 DEMB/ Mondelez/ Charger, (Case M. 7292), Commission Decision, 15th May 2015, paragraph 57.

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considered separately, thanks to a differentiation of products based on environmental factors by consumers.

This policy shift, that the Commission is reforming how it defines its markets with regards to separating them based on sustainability factors, was seen again in 2019 in Aleris/ Novelis,29 where the Commission differentiated between the type of aluminium that is used downstream in fuel efficient vehicles and the aluminium used in other markets. The Commission

expressly recognized that in the eye of the consumer, sustainable characteristics in a product constitute a differentiating factor.30

This was repeated most recently in April of 2021, in Schwarz Group/ Suez Waste Management.31 The European Commission at paragraph 118 of its decision considered sustainability preferences of consumers when assessing the relevant market, by recognizing the importance to consumers of a reduction in CO2 emissions. In this case, the consumer preference concerned environmentally friendly transport of the waste as a result of shorter distances travelled when transporting the waste, from the two undertakings.

The importance of adopting a sustainable ‘Theory of Harm’ cannot be overstated, which is why it was stated by Executive Vice-President Vestager, regarding the Acquisition of Metallo by Aurubis32, “A well-functioning, competitive copper recycling industry is key to meet the future needs of European industry and to limit the impact on the environment”.33 This

comment is in stark contrast to the position that was adopted by the Executive Vice-President in the Bayer/ Monsan to deal. This turn around read together with the recent case law

developments mentioned above, indicates a policy shift on the behalf of the Commission that it is beginning to recognize that sustainable and non-sustainable products or services of what would have traditionally been deemed the same good, now do not constitute substitutable products in the eyes of the consumer.

29 Novelis/ Aleris, (Case M. 9706), Commission Decision, 1st October 2019.

30 Ibid at paragraph 84.

31 Schwarz Group/ Suez Waste Management Companies, (Case M. 10047), Commission Decision, 14th April 2021, paragraph 118.

32 Aurubis/ Metallo Group Holding, (Case M. 9409), Commission Decision, 4th May 2020.

33 European Commission Press Release, 19th November 2019,

<https://ec.europa.eu/commission/presscorner/detail/en/IP_19_6305> accessed on 21st April.

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2.3 Additional Elements

While it is crucial, as argued above, that Commission reassesses how it defines the relevant market, the Commission must also look at additional factors so as to be able to carry out an effective SIEC analysis and determine the harm to green innovation caused by a merger. The OECD has pointed out that the conventional ways of determining if there will be a significant impediment to effective competition, in the event of a concentration, such as calculating market shares post-concentration is no longer, on its own, the most effective method for calculating this.34 The Commission must look outside the market definition process to incorporate a more effective sustainability ‘Theory of Harm’.

Therefore, it was suggested by the OECD35 that internal documents of the undertakings party to a potential concentration could play a pivotal role, as they can contain information and evidence of the competitive dynamics, the parties’ activities, and future plans, all of which can help construct the counterfactual and more readily determine if there will be harm to green innovation post-merger.

The Commission recognized this in its decision in Dow/ Dupont36 and therefore the

Commission looked at internal documents to consider additional methods of assessing harm to competition through reduced innovation capabilities among competitors. In Dow/ Dupont the Commission assessed the possibility of a reduction to innovation in the crop protection industry by looking at the parties' specialisation and assets, R&D efforts and headcount, track record and their patent portfolios.37 While the Commission has made significant headway in its market definition process, it must also be conscious that investigative techniques play a crucial role in making the EU Merger Regime fit to assist the EU realise its climate

commitments.

34 OECD, ‘Environmental Considerations in Competition Enforcement, 1st December 2021,

<https://one.oecd.org/document/DAF/COMP(2021)4/en/pdf> accessed on 6th March 2022.

35 Ibid, paragraph 184.

36 Dow/ DuPont, (Case M. 7932), Commission Decision, 27th March 2017 paragraphs 708 – 714.

37 OECD, ‘Environmental Considerations in Competition Enforcement, 1st December 2021, paragraph 164,

<https://one.oecd.org/document/DAF/COMP(2021)4/en/pdf> accessed on 6th March 2022.

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2.4 Summary

We have seen that the EU Commission is actively redefining markets to protect innovation and matching the shift in consumer preference. Furthermore, the Commission is also changing its investigative methods by giving more priority to internal documents to predict negative environmental effects. From the above caselaw we can conclude that the ‘Theory of Harm’ element, thanks to the positive action taken by the Courts and the Commission, is ‘fit for purpose’ in helping the EU attain its goal under the European Green Deal.

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3. Merger Efficiencies 3.1 Introduction

The possibility to prohibit concentrations that would produce negative environmental affects has been discussed in the previous chapter. However, another element of the European Merger Regime that has the potential to assist the EU in reaching climate neutrality by 2050, is the corollary of the previously discussed tool. That is, to permit concentrations which produce positive environmental affects and contribute to innovation within green markets that would otherwise not be permitted under the traditional European Merger Regime. This is known as the ‘Merger Efficiency Defence’.

An example of how a concentration may produce positive environmental efficiencies include a joint venture which researches and develops green technologies. The European Green Deal, according to the Commission’s web page38 seeks to promote “longer lasting products” and

“cutting edge clean technological innovation”, these goals can be achieved through such concentrations. A sustainable efficiency defence would attempt to show that positive environmental externalities of the concentration, like the examples given above, counterbalance the negative competitive externalities of the concentration.

The possibility to allow concentrations that produce efficiencies which nonetheless harm competition already exist within the European Merger Control Regime. Recital 29 of the EUMR requires the Commission, while carrying out an SIEC analysis under Article 2 EUMR, to, “take account of any substantiated and likely efficiencies put forward by the undertakings concerned” with the potential for a merger to be deemed compatible with the

‘Internal Market’ as the efficiencies outweigh the anti-competitive effects, to the extent that there is no significant impediment to effective competition. This Thesis will therefore continue with analysing how ‘fit for purpose’ the current ‘Merger Efficiencies Defence’

element is in assisting the EU attain the goals of the European Green Deal.

38 ‘A European Green Deal’, <https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_en>

accessed on 11th January 2022.

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3.2 Article 2 EUMR

The first element of this defence that this Thesis will examine is Article 2(1)(b) EUMR, which outlines what will be assessed under the SIEC test. This Article states that the

Commission will give consideration to, “the development of technical and economic progress provided that it is to consumers' advantage and does not form an obstacle to competition”, for the purposes of environmental efficiencies, emphasis is given to technical development. It was helpfully pointed out by Simon Holmes39 that ‘technical development’ may be used as a banner under which environmental efficiencies could be considered in the EUMR process.

Holmes states this due to the fact that many environmental efficiencies take the form of a more efficient product or way to provide a service in a more efficient manner, which can be considered as a technical development.

However, given the intangible nature of a cleaner and greener environment, it is a tall order to quantify the resulting benefits into economic terms, in order to show that the concentration supports the development of economic activities. Moreover, there are a plethora of situations in which environmental efficiencies, while they might have great benefits for the

environment in general, may not be categorized as contributing to technical development. It is necessary therefore to expand the principle established Recital 29 of the EUMR to

encompass the sustainable development of all activities including promoting the sustainable development of the environment.

As shown above, while under the current legal framework, a possibility exists for certain environmental efficiencies to be assessed, this element of the European Merger Regime is not yet ‘fit for purpose’, to assist the EU in reach its current climate commitments. It is therefore necessary that the Commission clarifies that a broader range of environmental efficiencies may be considered in certain circumstances as contributing to technical and economic development under Article 2 as no such clarification, at present, is available. However, to achieve the maximum amount of breadth in which environmental efficiencies can be considered under Article 2 EUMR, the Commission should amend it to include not just economical and technical development but also environmentally sustainable development.

39 Simon Holmes, ‘Climate Change, Sustainability and Competition Law’, (2020), Volume 8 Issue 2, Journal of Antitrust Enforcement, <https://academic.oup.com/antitrust/article/8/2/354/5819564#205178732>, accessed on 15th March 2022.

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If the Commission was to take the above suggestion on board, that is, to mention environmentally sustainable development, it would be prudent to take inspiration from Austria which recently amended its Cartel Act (Kartellgesetz 2005) in September of 2021.40 While this amendment and the original act focuses on deals with cartels it can easily be translated into mergers and therefore still constitutes a legitimate source of inspiration. §2(1) of the act allows cartels which result in, “the promotion of technical or economic progress if those benefits contribute substantially to an ecologically sustainable or climate-neutral economy.”41 Incorporating this into the EUMR would provide a great deal of legal certainty and constitute an additional step in ensuring that the EUMR is fit to assist the EU in reaching its Green Deal goals.

Another possible way to justify the considerations of environmental efficiencies within the EUMR is under Recital 4 of the EUMR which states that, "Corporate reorganisations are to be welcomed to the extent that they are in line with the requirements of dynamic competition and capable of increasing the competitiveness of European industry, improving the

conditions of growth and raising the standard of living in the Community". Living within a green environment and not living in fear of the dangers of climate change is intrinsically linked with the standard of living within the community. However, this must be clarified by the Commission in order to improve legal certainty.

3.2 The Three Criteria

Following the clarification by the Commission as discussed above, the next issue that must be addressed in order to determine if the ‘Merger Efficiencies Defence’ is ‘fit for purpose’ is the criteria that must be fulfilled to avail of the defence. As it stands, under the current EUMR, for a proposed concentration to avail of the efficiency exemption, it must satisfy three criteria that are outlined at paragraphs 78 – 88 of its guidelines on the assessment of horizontal mergers.42 Therefore, following clarification by the Commission that Article 2(1)(b) or Article 4 EUMR is understood to include environmentally sustainable development, the

40 Federal Act against Cartels and other Restrictions of Competition 2005, as amended, effective 10th September 2021 NR: GP XXII RV 926 AB 990 p. 112. BR: AB 7309 p. 723.

41 Ibid at §2(1).

42 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertaking, OJ C 31, 5.2.2004, p. 5–18, paragraphs 78 – 88.

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Commission must look to see how ‘fit for purpose’ its criteria are for assessing sustainable efficiencies.

The first criterion outlined in the Guidelines is that the efficiencies produced by the

concentration should sufficiently compensate the consumers for any anti-competitive effects, secondly, the efficiencies produced must be merger-specific, and finally, the efficiencies must be verifiable. Once all of these criteria are satisfied the Commission will assess whether or not the efficiencies produced outweigh any competitive concerns that the concentration may cause and thus do not significantly impede on effective competition.

While demonstrating that the efficiencies are merger specific, in other words the

concentration is necessary to produce such efficiencies, may not be too problematic, the other criteria, benefiting the consumer with a fair share and being verifiable pose very difficult legal interpretation challenges to surmount. The Commission must therefore reconceptualize how it approaches these criteria in order to make the ‘Merger Efficiencies Defence’ element of the Merger Regime, ‘fit for purpose’ in achieving the goals of the European Green Deal.

3.3 Fair Share for the Consumers

As mentioned above, for a concentration to avail of the ‘Merger Efficiencies Defence’

exemption, the consumers must receive a fair share of the efficiencies produced. This concept of what constitutes a fair share, how narrowly one perceives the relevant group of consumers and the time frame for how quickly these efficiencies materialize for the consumer, must be reconceptualized to allow merger control to contribute to the European Green Deal. This Thesis will now address each point separately.

3.3.1 What Constitutes a Fair Share?

With regards to consumers receiving a fair share, the Commission must remember the

urgency we face as climate change impacts our lives at an increasingly alarming rate and how imperative it is that all actors across the EU implement policies that contribute to the

realization of the EU Green Deal. That is why a wide range of discrepancy should be given when deciding what in fact constitutes a ‘fair share’.

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Traditionally, the fair share referred to, requires the efficiencies to wholly outweigh the negative effects the concentration imposes on competition within the market. However, as was highlighted at Paragraph 41 of guidelines on sustainability agreements by the Dutch Competition Authority, “it can be fair not to compensate users fully for the harm that the agreement causes because their demand for the products in question essentially creates the problem for which society needs to find solutions”.43 This forward-thinking approach should be implemented at an EU merger level and therefore a fair share that consumers receive should not be interpreted as fully compensating all negative competition externalities.

Moreover, it is necessary to depart from this focus of compensation primarily being low prices, otherwise, as stated by Oscar Wilde, we become the fool who knows, “the price of everything and the value of nothing”.44 Consumer welfare by its very definition, and thus a

‘fair share to consumers’ extends beyond lower prices or wider choice and includes a greener environment and more sustainable markets. This much was noted by the Dutch Competition Authority, in which the ACM stated that, “[i]t is essential to note that consumers may also find products characteristics related to sustainability important, and may therefore value the fact that products are produced in an environmentally friendly or animal-friendly manner…

it is also important that scarce resources are used as efficiently as possible, which benefits welfare.”45 Therefore, a concentration which sufficiently contributes to a greener economy despite restricting competition or results in higher prices to an acceptable degree must nonetheless be considered as providing a ‘fair share’ to the consumers.

A model approach to solve this issue of reconciling compensation with environmental efficiencies was taken in the Austrian Amendment Act to their 2005 Cartel Act46, as

mentioned above. According to this amendment, “[c]onsumers shall also be deemed to enjoy a fair share of the benefits which result from improvements to the production or distribution

43 ACM, Guidelines on Sustainability Agreements, paragraph 41,

<https://www.acm.nl/sites/default/files/documents/2020-07/sustainability-agreements%5B1%5D.pdf> accessed on 15th January 2022.

44 Simon Holmes, ‘Climate Change, Sustainability and Competition Law’, (2020), Volume 8 Issue 2, Journal of Antitrust Enforcement, <https://academic.oup.com/antitrust/article/8/2/354/5819564#205178732>, accessed on 15th March 2022.

45 ACM, Vision Document, ‘Competition and Sustainability’, May 2014, section 2,6,

<https://www.acm.nl/sites/default/files/old_publication/publicaties/13077_vision-document-competition-and- sustainability-2014-05-09.pdf> accessed on 29th January 2022.

46 Federal Act against Cartels and other Restrictions of Competition 2005, as amended, effective 10th September 2021.

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of goods or the promotion of technical or economic progress if those benefits contribute substantially to an ecologically sustainable or climate-neutral economy.”47 This approach would, if adopted by the Commission, outright recognize significant contributions to the environmental objectives as constituting a fair share and push the ‘Merger Efficiencies Defence’ element in the right direction of being ‘fit for purpose’.

3.3.2. The Relevant Consumer Group

Having dealt with what constitutes a fair share, this Thesis will now address what constitutes the relevant consumer group. It is paramount that the current concept of what constitutes the relevant consumer, in which the ‘fair share’ must accrue, is broadened to incorporate a wider range of consumers to allow the ‘Merger Efficiencies Defence’ element to assist the EU in reaching its climate goals. It is a general principle of competition law that for an efficiency defence to be availed of, be it under Article 101(3) TFEU or Recital 29, the same benefits must accrue in the same immediate product and geographical group of consumers that the anti-competitive effects, as was stressed by the CJEU in paragraph 225 of its judgment in Mastercard.48

However, the concept of what constitutes a consumer, when assessing factors such as carbon emission or levels of pollution of the sea, should be expanded in both space and time. As pointed out by Augustina Hermida in her article49, society as a whole will suffer the

consequences, such as greater air pollution. This point was resonated by the staff discussion paper published by the Hellenic Competition Commission recognizing that consumers, “are simultaneously active in various social spheres and have wider interests than their narrow financial ones in the specific relevant market.”50 That is why, to properly assess the effects of a merger on the environment, the concept of the consumer must be broadened. It is no longer possible to hold an individualistic approach.

47 Ibid at §2(1).

48 Judgement of 11 December 2014, MasterCard Inc. and Others v European Commission, C‑382/12 P EU:C:2014:2201,paragraph 225.

49 Augustina Hermida, ‘When Green Meets Merger Control’ (European Commission Competition Policy Brief, Issue 3, December 2021), Page 18, <https://ec.europa.eu/competition-policy/system/files/2021-

12/Competition%20Policy%20Brief%203-

2021_Students%20challenge%202021%20greening%20competition_kdak21003enn.pdf> accessed on 11th January 2022.

50 HCC, Competition Law and Sustainability, Draft Discussion Paper, Paragraph 71,

<https://www.epant.gr/files/2020/Staff_Discussion_paper.pdf> accessed on 20th April 2022.

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Expanding from this point, the principle of an immediate compensation to a narrow group of consumers defined by the product or geographical market in which the anti-competitive effects occur, as shown in Mastercard51 is hard to reconcile with the compensation that results from environmental efficiencies. Environmental efficiencies address a global and existential issue, one which every member of society is impacted by, however the impact from environmental efficiencies may be felt more in another geographical region that is more susceptible to the dangers of climate change rather than the region which is subject to the anti-competitive effects. Given the extremely broad impact environmental efficiencies have, across a wide range of groups in society, it is necessary to broaden the current concept of consumers to allow environmental efficiencies avail of the exemption. A merger regime which maintains a narrow concept of what constitutes the relevant group of consumers cannot be considered fit to assist the EU in reaching climate commitments.

This has been recognised by certain academics and therefore, an extreme broadening of the concept of the relevant consumer group for environmental efficiencies was proposed by Badea et al..52 Badea suggests that, “if an agreement leads to a reduction in pollution to the benefit of society, and assuming the benefits are significant, a fair share of them can be apportioned to the harmed consumers – the latter being part of society – and fully

compensate them for the harm.” This is a very radical view to define the relevant consumer group as that of society as a whole and is unlikely to be accepted by competition enforcers.

However, its underlying reasoning could prove significantly useful in justifying a wide consumer group.

In shaping a merger regime that contains a definition of the relevant consumer group, which facilitates mergers that result in environmental efficiencies to avail of the exemption under Recital 29 EUMR, it would be prudent for European merger policy makers to look to how the situation is dealt with under Article 101(3) TFEU. Under 101(3), the Commission, in its decision of CECED53, recognized that when looking at what the relevant consumers were, the

51 Judgement of 11 December 2014, MasterCard Inc. and Others v European Commission, C‑382/12 P EU:C:2014:2201.

52 Alexandra Bade et al., ‘Competition policy in Support of Europe’s Green Ambition’, Commission Competition policy Brief, September 2021, page 6, <https://op.europa.eu/en/publication-detail/-

/publication/63c4944f-1698-11ec-b4fe-01aa75ed71a1/language-en/format-PDF> accessed on 6th March 2022.

53 CECED (Conseil Europeen de la Construction d'appareils Domestiques) (Case IV.F.1/36.7.18) Commission Decision, 24th January 1999.

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collective environmental benefits that accrued were relevant in its assessment. The

Commission expanded on this by stating that the, “environmental results for society would adequately allow consumers a fair share of the benefits even if no benefits accrued to individual purchasers.”54 This reasoning is in keeping with the Commission’s 2004 Exemption Guidelines55 which recognizes that, “society as a whole benefits where the efficiencies lead either to fewer resources being used to produce the output consumed or to the production of more valuable products and thus to a more efficient allocation of

resources”.56

Moreover, under Article 101(3) the Commission through several of its decisions has

established a precedent of a large group of consumers. Most notably in Compagnie Generale Maritime the General Court57 held that when assessing efficiencies under Article 101(3) TFEU, “regard should naturally be had to the advantages arising from the agreement in question, not only for the relevant market … but also, in appropriate cases, for every other market on which the agreement in question might have beneficial effects, … [Article 101(3)]

of the Treaty envisage[s] exemption in favour of, amongst others, agreements which contribute to promoting technical or economic progress, without a specific link with the relevant market.”58

Upon analysis of the Commission’s stance on consumers under Article 101(3) TFEU we can see a very broad consumer group for environmental efficiencies. If the Commission were to implement an even less severe policy for determining the relevant consumer group under the EUMR, it would drastically increase the possibility of environmental efficiencies being assessed under the European Merger Regime and thus make this element of the European Merger Regime fit to assist the EU in reaching its Green Deal Goals.

Finally, the need to broaden the definition of the consumer group extends beyond

geographical and product markets as discussed above. However, in certain cases the relevant

54 Ibid at paragraph 56.

55 Communication from the Commission, Notice, Guidelines on the application of Article 81(3) of the Treaty, OJ C 101, 27.4.2004, p. 97–118, paragraph 85.

56 Simon Holmes, ‘Climate Change, Sustainability and Competition Law’, (2020), Volume 8 Issue 2, Journal of Antitrust Enforcement, <https://academic.oup.com/antitrust/article/8/2/354/5819564#205178732>, accessed on 15th March 2022.

57 Judgement of 28th February 2002 Compagnie Generale Maritime v. The Commission T-86/95 II-01011.

58 Ibid at paragraph 343.

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consumer group must also be expanded, to extend beyond the present consumer market in which the anti-competitive effects are felt and look towards future consumers. Given the nature of environmental benefits, in certain cases environmental efficiencies, will not be benefited immediately by the consumer group burdened with anti-competitive effects, but rather future consumers who will be present on the consumer market when environmental efficiencies accrue. In other words, for environmental efficiencies to have a better chance of giving a fair share to the consumer, the Commission must consider sacrifices made by this generation for the benefit of generations to come.

3.3.3. The Time Frame for Efficiencies to Materialize

The final element under the criterion for consumers having to receive a fair share is that of a time frame, which must also be adapted to make the ‘Merger Efficiencies Defence’ ‘fit for purpose’. As per the preceding section, consumers must receive a fair share of any

efficiencies produced by a concentration for it to avail of the ‘Merger Efficiencies Defence’.

However, these efficiencies produced in a lot of circumstances will not materialize

immediately and may need, a few years before consumers can reap the benefits, whereas the anti-competitive externalities may be felt in the short term.

In general, the Commission is aware of the patience required and therefore allows a certain leeway for these efficiencies to be realized. However, the issue is that due to the slow pace of many actions which help combat climate change, quite a large number of environmental efficiencies require much longer to materialize than conventional efficiencies such as lower prices. That is why it is necessary for the Commission, when assessing environmental efficiencies under the EUMR, to expand its current timeline to allow for the assessment of environmental efficiencies which materialize for the benefit of not only current, but future consumers too.

Once again it may be possible to look to the Commission’s policy under Article 101(3) TFEU for inspiration on how the EU’s Merger Regime may move forward to becoming more

sustainably considerate and thus ‘fit for purpose’. The Commission in its 2004 Exemption Guidelines59, while sceptical, has confirmed that under Article 101(3) TFEU, the

59 Communication from the Commission, Notice, Guidelines on the application of Article 81(3) of the Treaty, OJ C 101, 27.4.2004, p. 97–118, paragraph 88.

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Commission will consider benefits given to future consumers. However, the Commission has, under Article 101(3) TFEU, differentiated between present and future benefits and held that future benefits must be discounted and do not carry the same weight as present benefits.60 The reasoning for this differentiation is to account for inflation, however, this is presuming that the efficiencies take the form of conventional price-based benefits. Given the non-price nature of environmental efficiencies, this distinction should be struck out or at the very least be severely diminished when carrying out an assessment under the EUMR. If, following the preceding logic, this distinction between present and future efficiencies is diminished, then there seems to be no reason why a longer timeframe than that of the current one cannot be used.

Under the current regime the timeframe for efficiencies to materialize is around two to three years61, which it too short a time for these environmental efficiencies to be realized.

Therefore, it was put forward by Augustina Hermida62 in her paper, that the required timeframe required for environmental efficiencies is around ten to twenty years. While this may seem far too long for enforcement to be effective, a good system to effectively verify these efficiencies (which will be discussed in the following chapter) would dispel any concerns about the length of the timeline.

An alternative solution, that has been suggested by the OECD in a publication63, is to use the current timeframe only after the potential constraint is expected to have materialised and reached maturity. The OECD argues that this would have the advantage that if the innovation would come on stream in, five years, then the balance between competitive constraints and environmental efficiencies would begin to be assessed only at that time and from then onwards.64

60 Ibid.

61 OECD, ‘Environmental Considerations in Competition Enforcement’, 1st December 2021, paragraph 180,

<https://one.oecd.org/document/DAF/COMP(2021)4/en/pdf> accessed on 6th March 2022.

62 Augustina Hermida, ‘When Green Meets Merger Control’ (European Commission Competition Policy Brief, Issue 3, December 2021), page 19, <https://ec.europa.eu/competition-policy/system/files/2021-

12/Competition%20Policy%20Brief%203-

2021_Students%20challenge%202021%20greening%20competition_kdak21003enn.pdf> accessed on 11th January 2022.

63 OECD, ‘Environmental Considerations in Competition Enforcement’, 1st December 2021,

<https://one.oecd.org/document/DAF/COMP(2021)4/en/pdf> accessed on 6th March 2022.

64 Ibid at paragraph 180.

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This longer timeframe for assessing efficiencies may be viewed by some as constituting an overstretch by merger enforcement authorities, however, this extended timeline would represent the reality of environmental efficiencies and is therefore necessary.

To summarize, our understanding on how the Commission defines the relevant group of consumers must be adapted to accommodate for the nature of environmental efficiencies and therefore allow the ‘Merger Efficiencies Defence’ to be fit for assisting the EU in reaching its goals. To allow for this the definition of consumer must be expanded in both a lateral and linear sense. Lateral, in the sense of wider consumer groups or more easily identifying links between markets and, linear in the sense that one allows consideration to be given to future consumers. If the Commission was to take this suggestion of adapting this element of merger control on board, inspiration could be drawn from the Commissions policy surrounding Article 101(3) TFEU and the policy of the Austrian competition regime.

3.4 Verifiability

The last criterion needed to be satisfied by the undertakings who are party to a concentration to avail of the ‘Merger Efficiencies Defence’, is that the efficiencies must be verifiable.

Green products that have better quality or produce output more efficiently will in most cases prove easy to verify. However, this criterion proves problematic to certain environmental efficiencies as environmental efficiencies can in certain circumstance be deemed abstract and vague when compared to conventional price-based efficiencies.

According to a factsheet published by the Commission, the criterion of efficiencies being verifiable can be interpreted as meaning, “that the Commission can be reasonably certain that [the efficiencies] will materialize and be sufficient”.65 Thus, the issue we face is how to quantify these environmental efficiencies in a concrete and tangible way, so that the

Commission can ascertain whether they will materialize and be sufficient.

This issue has been recognized and addressed by the OECD in 2018, in which the

organization published guidelines on how cost-benefit analysis for environmental initiatives

65 Commission Factsheet, ‘Competition: Merger control procedure’, (July 2013),

<https://ec.europa.eu/competition-policy/system/files/2021-02/merger_control_procedures_en.pdf> accessed on 22nd April 2022.

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could be carried out through shadow pricing methods.66 The report defines how to quantify costs and benefits of environmental impacts and furthermore addresses how to discount benefits which accrue in the distant future. While this report is not specific to competition law, it provides an in-depth and ground-breaking insight into how abstract environmental efficiencies such as carbon reduction, can be calculated and thus verified.

Further to the report by the OECD, both the Dutch and Greek competition Authorities have made significant contributions to how one could potentially quantify environmental

efficiencies. To this end, the Dutch National Competition Authority and the Hellenic (Greek) Competition Commission have published a report, in which they examine how environmental effects may best be calculated.67 In the report it is suggested that certain tools such as hedonic pricing (this is the method of breaking a good or service down to its different characteristics and placing a monetary value on these characteristics) or survey-based methods such as conjoint analysis and contingent valuation can be deployed to assess how consumers view environmental effects and therefore quantify the externalities from the results.

Similarly to the OECD, the joint report from both the Greek and Dutch Competition

Authority also pushes for a shadow pricing method which demonstrate the value that society assigns to the harm of pollutive and greenhouse gas emissions. Moreover, the ACM and HCC have suggested that when looking at how these values may be assigned, the social cost-

benefit analyses may be used as a starting point.68 Alternatively, it is suggested that a cost value can be derived from the preventive cost of the damage that is caused by these negative environmental effects thereby internalizing the external costs. While this joint report does not specifically deal with concentrations and rather looks at agreements coming under the scope of Article 101 TFEU, it is argued by Kağan Uçar et al. that the trade-off approach employed by the Dutch and Greek competition authorities can be applied to other areas of competition law, such as merger control.69

66 OECD, ‘Environmental Considerations in Competition Enforcement’, 1st December 2021, paragraph 60,

<https://one.oecd.org/document/DAF/COMP(2021)4/en/pdf> accessed on 6th March 2022.

67 HCC and ACM, ‘Technical Report on Sustainability and Competition’, January 2021,

<https://www.acm.nl/sites/default/files/documents/technical-report-sustainability-and-competition_0.pdf>

accessed on February 3rd 2022.

68 Ibid.

69 Kağan Uçar, Gönenç Gürkaynak and Hakan Demirkan, ‘Sustainability Factors in Merger Control: Do Ambitious Efforts Fall Short of Expectations?’ (2021), N° 4-2021, Art. N° 103263, Concurrences, paragraph 9,

<https://www.concurrences.com/en/review/issues/no-4-2021/droit-et-economie/sustainability-factors-in- merger-control-assessments-do-ambitious-efforts-fall-en#nb11> accessed on 19th January 2022.

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Showing that consumers place a heavy importance on environmental efficiencies may ease the verification process of the merger efficiency process. However, the Commission may encounter difficulties in determining the value that consumers place on certain environmental efficiencies. The difficulties in assessing consumers’ appreciation for these effects could be considered for certain aspects, quite similar to the ones faced in relation to privacy in digital markets, as they both concern non-priced based competitive concerns. A recent policy push on the Commission’s behalf is that certain concentrations which reduce the quality of privacy may be as harmful to consumer welfare as those that lead to price increases. This has been acknowledged by the European Commission, for instance in its decision regarding the acquisition of Whatsapp by Facebook70 and also in the Commission Decision of Microsoft/

LinkedIn71, where privacy was identified as a parameter of competition that may be

negatively affected as a result of a merger.72 Thus, the Commission may look to how these non-price based effects were in fact considered and how this approach may be adapted to allow environmental merger efficiencies become more easily verifiable.

However, the methods suggested by the OECD have been criticized by Oxera in their publication73 for being too conservative in their assessment, as the tools, which look at the consumer’s willingness to pay, only look at the consumers that currently exist on the market.

The Author therefore suggests alternative methods the Commission could use to produce a more accurate representation of environmental externalities, such as avoided abatement cost or damage cost pricing. However, the Author of this Thesis believes that the methods used by the OECD, the ACM and the HCC constitute a sufficient first step as a solution to the

problems faced when verifying environmental efficiencies. While this ‘first step’ requires a significant policy change from the Commission, it is necessary, in order to properly

incorporate environmental efficiencies into the ‘Merger Efficiencies Defence’ offered by Recital 29 EUMR. A failure to commit to this policy change by the Commission would mean

70 Facebook/ WhatsApp, (Case M. 7217) Commission Decision, 3 October 2014, Paragraph 87.

71 Microsoft/ LinkedIn, (Case M. 8124) Commission Decision, 6 December 2016, paragraph 350.

72 OECD, ‘Environmental Considerations in Competition Enforcement’, 1st December 2021,

<https://one.oecd.org/document/DAF/COMP(2021)4/en/pdf> accessed on 6th March 2022.

73 Nicole Rosenbloom, ‘The Role of Sustainability in Merger Control’, 16th April 2021,

<https://www.oxera.com/insights/agenda/articles/the-role-of-sustainability-in-merger-control/> accessed on 19th January 2022.

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References

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