Rethinking Irish Competition Law and Policy for the Sustainability Era

• Pages: pp 38 - 64
• Published date: 12 July 2022
• Date: 12 July 2022

38

Rethinking Irish Competition Law and Policy for

the Sustainability Era

EOIN JACKSON*

I. Introduction

Ireland’s Climate Action Plan was unveiled in 2021 and provides a detailed

outline of how each sector of society can contribute to the achievement of net zero

emissions by 2050.1 One area that has not been addressed by this plan, however, is

that of competition law. e absence of national guidelines on how competition

law and policy can be reconciled with sustainable initiatives indicates that greening

the Irish business regulatory framework is not a key element to the national climate

strategy. e lack of national guidelines is exacerbated by the conservative approach

taken by the EU to sustainable competition law reform. is leads to ambiguity for

Irish rms that could result in potential conicts between the Competition and

Consumer Protection Commission (‘CCPC’), the European Commission and

businesses interested in pursuing sustainable corporate objectives. Consequently,

there must be an examination of how Irish competition law, from both a national

and EU perspective, can be re-evaluated to take into account the new net zero era.

e substance of this article will be divided into four parts. Part II will examine

the competition policy issues facing Irish companies who pursue sustainable

initiatives. It will be demonstrated that these issues could hinder potential eorts

to speed up the transition to a green economy. Part III will criticise the failure

of the CCPC to provide any form of national guidance or policy in relation to

sustainable competition policy. e need for such guidance will be justied on the

basis of contemporary lacunas in CCPC policy and the wider implementation of

national policies by comparative competition authorities. Part IV will question

whether recent European Commission reforms within this area will be sucient to

address the concerns of stakeholders. ese issues will be examined with particular

reference to their impact on the Irish market, though will also take account of the

European Commission’s broader position as a leading regulatory body. Part V will

suggest a path forward for Irish competition policy, both from a national and EU

perspective. e article will primarily address issues that may arise in relation to

* e author is an LL.B Graduate of Trinity College Dublin and a prospective LL.M candidate at

Harvard Law School. e author would like to acknowledge the assistance of the editorial team

and the peer reviewers. In particular, the author would like to thank Louise O’Callaghan and Jessica

O’Neill for their much-valued work on the article. Any views or opinions expressed in this article

are the personal views and opinions of the author.

1 Department of the Environment, Climate and Communications, Climate Action Plan 2021 (2021).

Rethinking Irish Competition Law and Policy for the Sustainability Era 39

State aid, anti-competitive agreements and merger control. ese issues will be

addressed in that order in each part of the article. e focus will be on pragmatic

reforms that take into account the status quo and recent wider movements within

competition regulation.

II. Competitive Issues in a Net Zero Economy

In seeking to achieve net zero emissions by 2050, Ireland has committed itself to a

number of initiatives that encourage businesses to transition towards sustainable

operations.2 ese initiatives are derived from the Climate Action Plan,3 the

European Green Deal,4 and wider international obligations.5 Irish businesses have

also made individual and sector-wide commitments designed to promote green

corporate models.6 At the same time, however, such initiatives may encounter

diculties with competition authorities. In particular, issues may arise in relation

to access to State aid, sustainability agreements that could be deemed anti-

competitive, and potential conicts with merger control regulation. ese issues

must be examined at a national and EU level to illustrate the extent to which

reform is needed.

II.I. State Aid

One of the primary issues that may arise in the context of competition law is the

use of State aid to nance the transition towards green business models. Article 107

of the Treaty on the Functioning of the European Union (‘TFEU’) prohibits aid

granted by Member States which distorts or threatens to distort competition by

favouring certain undertakings or the production of certain goods.7 Article 107(2)

and Article 107(3) of the TFEU provide exceptions to this prohibition which

are based on whether consumers will benet or other businesses will be harmed.

Article 108 of the TFEU rests enforcement of State aid rules on the European

Commission.

Under the previous EU Guidelines on State Aid for Environmental Protection

and Energy 2014–2020 (‘Energy and Environmental State Aid Guidelines’ or

2 National Social and Economic Council, e Framing of Climate Action in Ireland (2019) 113.

3 Climate Action Plan (n 1).

4 Commission, ‘European Green Deal’ COM (2019) 640 nal.

5 e Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016), e

Glasgow Climate Pact (adopted 13 November 2021).

6 Kevin O’Sullivan, ‘Sixty Irish Companies Sign Up to Carbon Reduction Targets’ e Irish Times

(24th March 2021) and Tony Kealy, ‘Sustainable Business Development: an Irish Perspective’ (Irish

Academy of Management Conference, Limerick, September 2014) .tudublin.ie/cgi/

viewcontent.cgi?article=1035&context=engschmanconn> accessed 25 May 2022.

7 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C

326/47 (TFEU).