Escaping the Clutches of EU Competition Law: Pathways to Assess Private Sustainability Initiatives Giorgio Monti * European University Institute Jotte Mulder University of Utrecht keywords to be inserted by the indexer Abstract We review the recent attempts by the Netherlands to stimulate private sustainability initiatives. Early moves have been challenged as infringements of EU competition law, and the current plan looks as if it may not escape scrutiny under the EU competition rules or the internal market rules. A review of the ECJ’s case law, however, suggests that both the Dutch competition authority and the Commission take too narrow a view of the way in which private sustainability initiatives could be carried out. At the same time, the case law remains ambiguous and inconsistent. In the name of stimulating diverse approaches to achieve environmental goals across the EU, we argue for greater convergence of the way sustainability initiatives are assessed under EU competition law and internal market law. Introduction As part of a programme of so-called future-proof legislation, the Government in the Netherlands has stimulated economic sectors to initiate and develop plans to address environmental, social and animal welfare standards themselves. This institutional drive towards more self- and co-regulation has received significant push-back from the Dutch competition authority, the Authority Consumer and Markets (ACM), which has specifically intervened and published informal opinions regarding two recent high-profile sustainability initiatives and qualified them as infringements of EU competition law. Indeed, there are obvious problems that the formulation and pursuit of public policy objectives by private economic actors raise from a competition law perspective. First, agreeing on joint minimum (e.g. fair trade) standards may reduce competition because products that are produced under lower standards can no longer be offered on the market. Secondly, it may be considered that competing individually on standards may lead to more efficient outcomes that are closer aligned with consumer interests. Thirdly, some may suspect that private initiatives are more likely to be designed to favour the industry implementing them than to have any positive social welfare impact. 1 * We are grateful to the Editor and to the anonymous referees for their helpful comments and suggestions. The usual disclaimer applies. 1 See by way of analogy the Opinion of AG Jacobs in Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie (C-67/96) EU:C:1999:28; [2000] 4 C.M.L.R. 446 at [184]: “The rationale underlying the competition rules’ wide scope of applicability ratione materiae is simple. It can be presumed that private economic actors normally 635 (2017) 42 E.L. Rev. October © 2017 Thomson Reuters and Contributors