Sustainability and EU Merger Control

This article adds to the limited existing literature about the role that sustainability should or could play in EU merger control. The topic of sustainability and competition law has been considered mostly with reference to the prohibition of anticompetitive agreements (art 101 TFEU) and abuse of a dominant position (art 102 TFEU). However, the characteristics of merger control make this area different from other areas of competition law (and, in practice, more vulnerable to lobbying by private interests). As the analysis shows, in EU merger control, sustainability plays a role in market definition and market appraisal. Within the context of harm to innovation competition (as a theory of harm), the European Commission has extended the boundaries of the analysis, to consideration of innovation spaces. It is argued that similar considerations should also apply to the assessment of efficiencies, and the theory of the failing firm defence. The tools for measuring sustainability used by environmental agencies could also be adopted in merger control, perhaps in cooperation between different agencies. Beyond this, it is argued that changing the framework of merger control to assess the effects of mergers on sustainability may act as a trojan horse for consideration of other non-market related factors, opening the door to undesirable consequences. Overall, increased consumer awareness of sustainability issues suggests that the preservation of competitive markets may be one of the most important contributions to sustainability that merger control can bestow