The course aims at providing students with a view on the interaction of the two goals of competition and sustainability within the framework of EU antitrust law.
Relevant EU antitrust rules and case law, as well as the underlying basic economic concepts and tools, will be confronted with the emerging need to incorporate within antitrust analysis considerations of "green" or "ethical" features of goods and production processes, the extent they meet consumers' preferences, and the way antitrust enforcement may either provide incentives or obstacles to the pursue of sustainability goals by undertakings.
The course also encourages students to learn through analysis and critical discussion of cases, with a view to stimulating debate on the application of rules to specific factual scenarios, use of argumentation and development of convincing skills.
Expected learning outcomes
By the end of this course, students should be able to: - Understand the various dimensions and implications of the interaction amongst EU Antitrust Law, competition policy and sustainability - Select, interpret and apply argumentatively the relevant bodies of laws and the relevant precedents to specific cases, in a problem-solving perspective. - Understand the scope and role of rules, enforcement mechanisms, institutions, making autonomous judgements. - Use their communication skills (written and oral) to argue convincingly, expressing their knowledge with propriety of language within logical, legal and (basic) economic reasoning. - Deploy learning skills suitable to continue their education with a high degree of autonomy.
After an introduction aimed at providing the basic elements of antitrust law and enforcement, as necessary to understand the problems raised by the emerging need to incorporate ethic and green consideration in the analysis, the course will then cover the debate on the goals of antitrust laws and its recent revitalization. Such a debate will then be seen at play within the framework of art. 101.3 TFUE (providing balancing criteria to "exempt" from prohibition restrictive agreements that are capable to produce countervailing benefits). Some specific topics taken from case analysis and recent trends will be then illustrated, with particular reference to art. 101 TFUE cases: cooperation agreements as collective attempts to reach higher levels of sustainability, as well as collusive agreements by which firms restrict competition and innovation in sustainability, as in the recent AdBlue decision of the EC. A view on merger control and the reform that is currently under debate as needed to tackle sustainability issues, will be the topic of the last section of the course.
The main contents of the course are the following
I. The goal of sustainability: general notions of sustainability; within the EU; the EU Green Deal II. Basic Antitrust: subject matters (restrictive agreements, abuses of dominant position, merger control - art. 101, 102 TFUE, Reg 139/04); enforcement institutions (the European Commission, the European Courts, National Competition Authority and National Courts); enforcement tools (public enforcement, private enforcement); public interest and competition policy (art. 3 TUE) III. The clash of competition policy with sustainability goals: an introduction - current proposals for reform IV. The goals of antitrust law - a brief overview of the history of antitrust (1890 Sherman Act in the US, the EEC in the 1957 Rome Treaty, national competition laws in Europe, the "modernization" of EU competition law in 2003, the current debate) V. Basic welfare economics and the "consumer welfare standard" (Harvard, Chicago and Post-Chicago; the "neo-brandesian" antitrust movement) VI. The CECED case (1999): antitrust and sustainability in the pre-modernisation era VII. Balancing judgments and art. 101.3 TFEU - the four conditions; social benefits and harmed consumers; the "fair share" to consumer test VIII. The "more economic approach" is there room for "non-economic values"? The EC General Guidelines on art. 101.3 - Case analysis: Irish Beef, Ford/Volkswagen IX. Balancing within art. 101.1: collective negotiations between management and labour. Case analysis: Albany. X. Integration of goals in the European Treaties: making room for consideration of different policies - separate or integrated applications XI. Cooperation amongst competitors for sustainability (sustainable standard setting; phasing-out unsustainable products or technologies) - Case analysis: Chicken of tomorrow and Energie Nederland - The Dutch Authority's policy on animal welfare and carbon consumption containment in 101.3 analysis XII. The current review of the Block Exemption Regulations on horizontal cooperation and sustainability. General sectoral exemptions: the agriculture case XIII. Collusion among competitors: to delay innovation in sustainability; collusion to greenwash. Case analysis: AdBlue (EC, 2021) XIV. Merger control and sustainability: killer acquisitions to hamper innovation in sustainability; environmental harm as a reason to block mergers
Prerequisites for admission
Class attendance is mandatory. Suggested readings and didactic materials for each class will be made available in advance, on the web page of the course (ARIEL). Students are advised to read the assigned materials before classes, and will be required to actively participate in the discussion and illustration of rules, decisions, and case studies. A moot court exercise will be carried out during the course.
Lectures will be based on specific reading materials indicated prior to each class.
Assessment methods and Criteria
Moot courts and case studies will constitute part of the final assessment. The final mark consists of an overall assessment of all the activities carried out by each student throughout the course: active participation (20%), case studies and presentations (20%), moot court (25%), final written test (35%). The final exam will be a written (open book) test, that will consist in providing a reasoned position within a case situation. It will be held at the end of the course: students will have 2 hours to complete the test. Grade will be on the basis of 30 points and will be posted on the Ariel web page of the course. Students who do not accept their grade in the final written test can register for an oral examination on all the contents of the course. With a view to familiarize students with the written test methodology, in the final weeks a mock written test will be conducted: students shall be required to draft at home the assigned paper, that will be then reviewed and returned individually (results will not be part of the final assessment); a discussion on methodology and content referred to the provided case situation will be conducted in class.