Companies have slim chances of dodging dominance abuse infringements on sustainability grounds, despite the European Commission’s (EC) recognition of the role of environmental benefits in antitrust probes, according to four competition lawyers.

Even though the EC’s inclusion of sustainability objectives as a possible efficiency in its 102 exclusionary guidelines could play a role in conduct such as refusal to supply and access restrictions, the stringent test to prove that it can outweigh the harm brought by abusive behaviour deems its practical application unlikely, the lawyers argued.

“Bringing any [102] efficiencies case is going to be hard. Bringing a sustainability efficiencies case Particularly hard, I think”, said Chris Cook, competition partner at Cleary Gottlieb in Brussels.

The debate around this topic emerged with the EC’s release of its updated guidelines for exclusionary abuses. The enforcer dedicated a section to efficiency defences by which a company can demonstrate that competition distortions caused by the behaviour of a dominant firm can be counterbalanced by other factors.

Among these factors, the EC emphasized the role that sustainability benefits can play in efficiency analyses. “In certain cases, sustainability benefits stemming from the dominant undertaking’s conduct may also translate into consumer benefits in the form of cost savings, for example, where the conduct of the dominant undertaking enables more sustainable products to be produced or distributed at lower costs”, the guidelines read.

Sustainability creep

This acknowledgement does not come as a surprise. Herbert Smith Freehills Kramer partner Laurence Bary said that the notion of “sustainability benefits” has been added by the EC into most of its recent guidance.

In 2023, the Commission made sustainability part of its guidelines on horizontal agreements. Cook said that he can foresee companies potentially taking advantage of these guidelines to cooperate in ways that foster sustainability objectives.

For example, in 2025 the EC issued an informal guidance letter on a sustainability agreement to reduce CO2 emissions in ports.

The draft merger guidelines also feature sustainability in its section about efficiencies. There, Cook said, the application of this notion is a little bit more “tenuous” as suitable fact-patterns may be rarer.

Now, it has also found its way to the final version of the 102 exclusionary guidelines. “I would not be too excited about that”, said Assimakis Komninos, competition partner at White & Case.

“If ever there is a deserving case that genuinely raises sustainability questions and there are benefits at stake, the guidelines would never be applied by the Commission because the case will not have been prioritised in the first place”, he said.

“Then, if you go to the technical details, the test is quite stringent as to the group of consumers that must enjoy the benefits”, Komninos added.

The guidelines state that to establish an efficiency defence, the company must show that its conduct allows efficiencies to be achieved, that it is necessary for the achievement of those efficiencies, that it does not eliminate effective competition and that those efficiencies counteract any negative effects of that conduct on competition and consumers.

Bary said that this is a “burdensome” test to meet, and it makes it “very difficult to imagine a credible scenario where a sustainability defence would succeed before the Commission under article 102”.

A guide for self-assessment

Tom Jenkins, partner at Baker McKenzie in Brussels, said that a lot of the legal work around abuse of dominance is about advising clients to self-assess their conduct, not about cases before the EC. In that case, “the more guidance we have in that area, the better”, he said.

According to Jenkins, the guidelines provide good examples of conduct that could fall under the category of sustainability efficiencies.

A provision from the guidelines reads: “For instance, efficiencies may result from conduct that is used to address a hold-up problem for investments that pursue sustainability objectives, such as the long-term risk of investing in a hydropower plant or wind farm”.

Jenkins said he finds this example useful, because to have sustainability benefits over a long period of time, companies need to make a lot of investment up front, and they will not commit to that investment unless they are reasonably sure that they will get the benefits of it over the longer term.

“You could imagine a case where a company has invested hundreds of millions developing a new sustainable technology. A rival might argue that it needs access to that technology in order to compete effectively downstream. But the counterpoint is that, if firms know they will be required to share the benefits of those investments too readily, that may reduce the incentive to make those investments in the first place”, Jenkins argued.

A fifth practitioner signalled that this guidance would have been useful in the context of a 2001 dominance abuse case against Duales System Deutschland AG (DSD).

The company created the “green dot” trademark for the collection and recycling of sales packaging in Germany. The EC found that it prevented the entry of rivals in the market and later defined the conditions in which packaging waste disposal would be compatible with competition law.

Bary from Herbert Smith Freehills Kramer said that in abuse of dominance cases, the Commission is very likely to argue that a company also has the means to pursue sustainable benefits without restricting competition.

That said, Bary argued that the guidelines could still be used in cases of refusal to deal or access restrictions. For instance, in a case where a dominant company favours access to its products or services to partners with sustainable practices.

“But any attempt to rely on sustainability benefits will be highly scrutinized based on a strict case-by-case analysis, and companies should be wary of relying solely on a sustainability defence to justify potentially anticompetitive behaviours”, she added.