1 Introduction

This report describes the relationship between sustainability and competition law under Belgian law, including Belgian competition law, as enforced by the Belgian Competition Authority (BCA) and the Belgian courts. As a member state of the European Union, European competition law also applies in Belgium, but questions of European competition law are not covered in this national report.

The scope of the notion of sustainability is often not clearly defined in debates about the interplay between sustainability and competition law, ranging from environmental sustainability over sustainable development and social justice to animal welfare. The review of cases for this report has focused on cases that relate to environmental sustainability, i.e., where contribution or harm to one of the environmental objectives mentioned in Article 9 of the Taxonomy RegulationFootnote 1 is at stake: (i) climate change mitigation, (ii) climate change adaptation, (iii) the sustainable use and protection of water and marine resources, (iv) transition to a circular economy, (v) pollution prevention and control, (vi) the protection and restoration of biodiversity and ecosystems.

2 Legal Framework

In Belgium, there are no specific statutory provisions that concern the role of sustainability in competition law, nor are any legislative initiatives planned at the time of writing this report. The BCA nevertheless considers that the current legislative framework allows it to take sustainability considerations into account, provided that sustainability is relevant to the functioning of the markets concerned by a certain practice or is relevant for those who may be affected by the practice (including out-of-market).Footnote 2 According to the BCA, it can do so by taking into account total as well as consumer welfare in its analysis and by considering the general economic interest.Footnote 3

With increased attention to questions of sustainability in the media, politics, and society as a whole, it can be expected that the interaction between sustainability and competition law will come more to the fore in the near future, including through pressure from the courts. While the Belgian courts have not taken such far-reaching decisions as those in, for example, the Netherlands,Footnote 4 the Court of First Instance of Brussels has also found that the various Belgian governments have been negligent in their climate policy.Footnote 5 However, the Court refrained from imposing specific obligations on the Belgian government to remedy this situation, which has led the nongovernmental organizations (NGOs) to bring an appeal against the judgment.

3 Enforcement Record

The BCA has explicitly stated that it has not dealt with cases in which sustainability played a role either to condemn certain practices or to defend them, and this regardless of the subfield of its competence (restrictive practices, abuse of dominance, or mergers).Footnote 6 To my knowledge, this topic has also not been raised in private litigation.

4 Advocacy and Prioritization

The BCA has expressed its support for the initiatives taken by the Dutch and Greek competition authorities to better incorporate sustainability in the application of European competition law.Footnote 7 At the same time, the BCA has insisted that there is a need for EU guidance in this respect, presumably to avoid divergent national approaches in the EU.Footnote 8

The BCA has also indicated that the application of competition policy in the green and circular economy in Belgium is one of its strategic priorities in 2022. It pointed out that a successful competition policy is an important factor in stimulating innovation and technological developments, which can contribute to the greening of the economy. At the same time, it indicated that it is willing to develop its position on the compatibility between the competition rules and sustainability measures.Footnote 9

The BCA has stated that it is particularly keen to provide (informal) guidance on sustainability initiatives.Footnote 10

5 Conclusion

So far, sustainability concerns have not influenced the enforcement of competition law by the BCA or the national courts. However, with increased attention to this topic, this may change in the future. The BCA has also stated that it will pay increased attention to the relationship between competition law and sustainability and is open to providing guidance on sustainability initiatives.