Competition for Sustainability: Sustainable Development Concerns in National and EC Competition Law

Authors

  • Markus W. Gehring

    1. Robinson College and Lecturer in European and International Law at the Centre of International Studies at the University of Cambridge and Lead Counsel for Trade, Investment and Competition Law, and Researcher on Concerted Action on Trade and Environment (funded by the European Commission) at the Centre for International Sustainable Development Law (CISDL)
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  • Dr. jur. Markus W. Gehring LL.M. (Yale) is a Fellow in Law at Robinson College and Lecturer in European and International Law at the Centre of International Studies at the University of Cambridge and Lead Counsel for Trade, Investment and Competition Law, and Researcher on Concerted Action on Trade and Environment (funded by the European Commission) at the Centre for International Sustainable Development Law (CISDL). The international dimension of competition law and sustainable development was discussed in his chapter entitled ‘The “Singapore Issues”, Competition and Sustainable Development’, in M. Gehring and M.-C. Cordonier Segger (eds), Sustainable Development in World Trade Law (Kluwer Law International, 2005).

    The author would like to thank A.L. Chua, Professor at Yale Law School, V. Chetty, Director at Edward, Natham and Friedland, South Africa and R. Pittman, US Department of Justice, for their assistance. He also wishes to acknowledge A. Klevorick, J.M. Balkin, R.W. Gordon, S.V. Levinson and the participants in the Law and Globalization Seminar, Spring 2003 at Yale Law School, for their inputs. The author also wishes to thank Marie-Claire Cordonier Segger for her intellectual collaboration and Kristin Price, Researcher, CISDL, for her help in finalizing the article.

Abstract

Competition law has become increasingly important in regulating the economy. This article aims to explore how domestic competition law relates to sustainable development. It distinguishes three ways that competition law can take into account environmental and social priorities: through substantive competition rules fostering social or ecological purposes; through exceptions, exemptions and exclusions; and through the enhanced application of competition laws. The first form is very interesting and currently not very widely used. Only a very few countries, such as South Africa, have included substantive provisions to promote social development in their competition laws. Most countries allow for some version of the second form of sustainable competition law. Few countries’ laws are as outspoken about their public policy goals as is Spain in its new draft competition law. This new draft law explicitly lists environmental protection and social policies as grounds upon which the government could repeal a competition decision. The third form is relatively unproblematic as it creates a win-win situation for competition and sustainable development. This article surveys some of the most interesting competition law developments across the world and indicates where these domestic regimes take into account environmental or broader social issues when making competition-related decisions such as merger approvals.

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