Square Peg in a Round Hole? Sustainability as an Aim of Antitrust Law
Square Peg in a Round Hole? Sustainability as an Aim of Antitrust Law

Summary/Abstract: The ongoing debate on sustainability in antitrust only briefly refers to the established legal methodologies of interpretation. In particular, there seems to be hardly any reflection on the teleological interpretation of competition law in the context of making sustainable development the aim thereof. This is problematic, because a methodologically sound construction of the aims of law is instrumental not only for the interpretation of its provisions, but also for ensuring the rule of law and safeguarding the rights of individuals. This article is an attempt to trigger a discussion in this area by analysing whether promoting sustainability is, or can be, an appropriate aim of antitrust law within the existing methodological framework. This allows for a consideration of whether promoting sustainability is currently a legitimate aim of competition law, and if not - whether and how it can, and whether it should, be introduced as such. The conducted analysis described in this article shows that the aims of antitrust are elusive, but essentially the aim of competition law should be an economic one, focusing on the protection of the freedom of competition, promoting economic efficiencies and ultimately protecting consumer welfare (surplus). Promoting sustainable development through antitrust, as it is currently proposed, inevitably leads to decreasing consumer surplus, and it is at least highly disputable if it increases consumer welfare. It is apparent that the proposed pro-sustainability solutions assume, or at least allow, that prices will increase, so the consumer surplus will decrease. Therefore, sustainability and the core economic aim of competition law are apparently in conflict with each other. Additionally, the broadness of the notion of sustainability and the significant diversity of its parts lead us to the conclusion that in legal terms it is internally contradictory. Thus, it may be reasonably concluded that there is no legitimate justification for the proposal that promoting sustainable development is an aim of currently binding Polish or European competition law, and furthermore, that it does not seem to be the proper aim of antitrust law for the future.

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