Rethinking Irish Competition Law and Policy for the Sustainability Era

Pagespp 38 - 64
Published date12 July 2022
Date12 July 2022
Rethinking Irish Competition Law and Policy for
the Sustainability Era
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
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)
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).

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