Institute of European Law Annual Lecture 2022
On 5th December, the Institute of European Law of the University of Birmingham hosted its 2022 Annual Lecture. This year the SAPIENS Network Coordinator, Prof. Roberto Caranta delivered an online lecture on sustainability in the internal market.
Sustainability entered the TEU with the Amsterdam Treaties. The (then) Member States highlighted their determination “to promote economic and social progress for their peoples, taking into account the principle of sustainable development”. Progress has been very slow so far, as attempts at integrating environmental and other sustainability considerations in internal market law and policy have been lukewarm at best. The European Green Deal heralded changes in the relationship between the market and sustainability. While much will depend on acts – including legislation – implementing the European Green Deal, it is argued that a deeper reconsideration of EU economic law is needed.
Sustainability as a Policy of the EU
Prof. Caranta started the lecture by taking the audience to where it all started: Make trade, not war. Though trade was the tool chosen, peace was the core of the European Coal and Steel Community (ECSC) and the European Economic Community (EEC). The rules provided for establishing a single market where goods, services, capital, workers and citizens move freely, complemented by rules on competition and state aid. After providing a brief picture of the EU internal market (four freedoms, competition law and state aid), Prof. Caranta addressed the role of sustainability therein.
Internal Market Freedoms and Sustainability
Sustainable development first took its place in the Treaties with the Amsterdam amendment to the Treaty on the European Union (TEU). With the Lisbon Treaty of 2010, many different aspects of sustainability took place in the Treaties, such as human dignity, social protection and environmental integration. However, as Prof. Caranta noted, the components of sustainable development conflict with the rules establishing the single market. Nevertheless, as Article 3 TEU provides, the EU is a social market economy. This should be the starting point in determining the role of sustainable development in the EU. He underlined that faced with new risks and challenges -both social and environmental- the EU is moving forward with a roadmap coming from the Commission, Council, and Parliament. The Green Deal is a great example of the ambitions shown by the EU institutions.
Prof. Caranta emphasized that achieving sustainability objectives is only possible with an “all-hands-on-deck” approach. After describing the different legal bases under the TFEU for law-making in the EU, Prof. Caranta explained how the new legislative proposals put sustainability, and especially climate change, at the centre, with the example of the recent Proposal for the revision of the Construction Products Regulation. However, he argued that the legal basis chosen for these initiatives might not be suitable for the issues of sustainability, as it provides for full harmonization and, as a result, precludes Member States from going beyond.
Competition Law and Sustainability
Referring to Article 101 TFEU, Prof. Caranta discussed the tension between “agreements” providing selling/trading conditions and objectives of sustainability when incorporated into agreements. With the upcoming Block Exemption Regulations and Horizontal Guidelines, sustainability is taking its place in competition law. Even in cases where the block exemptions do not apply, an exemption can be granted provided that the agreement allows “consumers a fair share of the resulting benefit” pursuant to Article 101(3) TFEU. Whether this provision covers sustainability considerations is an issue of interpretation, and Prof. Caranta suggests that the provisions should be interpreted in line with reality.
State Aid and Sustainability
While he specified that state aid is more complicated than the agreements in competition law, Prof. Caranta pointed out the Guidelines on State aid for climate, environmental protection and energy. He argued that the Private Investor Test (PIT) in state aid cases should be updated as states are not merely private investors regarding climate change.
Conclusion
To conclude, Prof. Caranta noted that many aspects of the EU law need to be revisited. The way forward is to reconsider the core notions of European economic law and bring those notions in line with the objectives underlying the social market economy where the environment is integrated into each policy.
The Full Recording Can Be Viewed Below
AGENDA
0:09 – 3:19 Welcome by Martin Trybus
3:20 – 4:33 Introduction by Roberto Caranta
4:34 – 8:36 Fundamentals of the EU
8:37 – 13:25 Four Freedoms of the Internal Market
13:26 – 32:26 Internal Market and Sustainability
32:27 – 39:52 Competition Law and Sustainability
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