Competition Law and Climate Change : A Proposal to Exempt Cartels on Environmental Initiatives

Abstract

Climate change is a global crisis, and its impact accelerates over time. While some businesses may wish to cooperate on pursuing environmental initiatives important for climate mitigation, their practice may violate the cartel prohibition –a central point of competition law– as competition authorities in many countries, including Thailand, still attach little weight to environmental objectives when balancing anti-competitive effects and environmental benefits in cartel enforcement. The issue of whether competition is an obstacle to environmental sustainability has therefore been intensely debated among scholars and advocates of environmentalism. This article suggests that cartels associated with environmental objectives should be exempted from prohibition. It concentrates, firstly, on the literature review on the fundamental principles of competition law and the interplay between competition law and environmental sustainability. Attention is then drawn to other jurisdictions’ developments of considering these competing interests, including the European Commission’s recent insertion of “Sustainability Agreements” chapter in its Horizontal Cooperation Block Exemption Guidelines and the Austria and Netherlands’ already-implementing green competition provisions. Returning to Thai competition law, the article concludes with the author’s in-depth analysis of reasons for the exemption and guidelines for incorporating such exemption in cartel provisions under the Trade Competition Act B.E. 2560 to compromise respect for the goals of competition law and to prevent problems that may arise after enforcing the exemption, such as greenwashing.