Climate Change Is an Existential Threat: Competition Law Must Be Part of the Solution and Not Part of the Problem

Climate Change is an existential threat. Competition law must be part of the solution and not part of the problem. This paper draws on the constitutional provisions of the EU treaties and remarks by leaders such as Commissioner Vestager to show how competition law need not stand in the way of urgent action and co-operation by the private sector to fight climate change. It also shows how sustainability is relevant to both the analysis of mergers and dominance cases. It is a call to update our thinking, our guidelines and, if necessary, our law. Based on EU law it contains ideas that could inspire changes in other jurisdictions. Finally, it contains a plea for us to learn the lessons from the COVID crisis for the climate crisis.

By Simon Holmes¹

I. INTRODUCTION: CLIMATE CHANGE – THE MORAL IMPERATIVE

It is increasingly accepted that we face a “climate emergency” and that “business as usual” is not an option.² What has this got to do with competition law? Well, very little and a lot.

A little in the sense that competition law is a small part of a very big picture. When I put off a light, cycle rather than drive, or eat chicken rather than beef, I can only make a minute contribution to the challenges we face. When we look at transport issues some will say agriculture is a bigger issue. And so on, and so on…

But, not only do we have to start somewhere, I argue that we have a moral imperative to do so and to take action whenever and wherever we can –