The German Act Against Restraints Of Competition

Author : Eckart Bueren
Publisher :
ISBN 13 :
Total Pages : 0 pages
Book Rating : 4.:/5 (137 download)

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Download or read book Sustainability and Competition Law - Germany written by Eckart Bueren and published by . This book was released on 2023 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: German competition law has been witnessing a long-standing discussion on how and to what extent non-economic goals can and should play a role in the application of the German Act against Restraints of Competition (GWB). Recently, this discussion has centered on sustainability as a partly economic, partly non-economic goal, which is universally recognised, but seems to lack a clear-cut definition (see Section 2.1). Indeed, promoting sustainability, in particular with regard to climate protection and the protection of human rights in supply chains, is currently one of the most prominent hot topics in economic law in many jurisdictions. In Germany as well as in Europe, not only company law and capital market law, but also competition law has come into the focus of this debate. At the outset, it should be stressed that most scholars and practitioners in Germany share the view that sustainability, in particular climate protection, and competition law do not usually collide, as competition promotes an efficient use of resources in line with sustainability targets (see Section 3.1). However, conflicts may arise, in particular in situations of market failure (see Section 2.2). This discussion is not completely new. As a spin-off of the debate and the vast scholarship on (certain) non-economic goals and competition policy, the period between (at least) the early 1970s and the late 1990s saw an intense discussion on German competition law vis-á-vis environmental protection, in particular with regard to so-called self-restraint agreements by undertakings (Selbstbeschränkungsvereinbarungen) and regulation on waste disposal. Besides, since the 1990s, several German monographs have been devoted to the topic, placing a focus on European competition law. Especially since 2020, the discussion has gained traction again in light of the broader concept of sustainability, but is still focussing on environmental aspects, as evidenced by a steady stream of recent articles in German journals and commemorative publications. From a legal perspective, this renewed attention on sustainability-related matters is motivated by international law obligations for climate protection, both by European law and by German constitutional law (see Section 2.1). Another important driver is the practical need for companies to react to the aforementioned developments: Companies must adapt to new laws on supply chain liability and sustainable finance, to increasing societal pressure to stop ESG-irresponsible practices and to growing consumer demand for ESG compatible business behaviour and products. For these reasons, several companies have already approached the German Federal Cartel Office for advice on whether they can pursue joint sustainability initiatives (see Section 3). Against this background and in view of recent policy activities in other jurisdictions such as the Netherlands and on EU level, the current German government has announced that it will examine whether changes in the German Act against restraints of competition (Gesetz gegen Wettbewerbsbeschränkungen - GWB) to facilitate sustainability initiatives are in order (see Section 4).