Fostering Sustainability Using the Existing Toolbox

Abstract

Over the last few decades, a debate has formed surrounding whether competition law should take into account sustainability considerations. This paper is not intended to answer this normative debate. Instead, it focuses on the precursor question: can the current iteration of the Competition Act successfully consider environmental goals in its competitive analysis? Although not expressly contemplated in section 1.1 of the Competition Act, this paper argues that, in light of recent amendments to the Competition Act and enforcement actions around the globe, environmental effects can be considered in the competitive analysis framework through the efficiencies defence, green “killer acquisitions,” competitor collaborations focusing on sustainability, standard setting in abuse of dominance allegations, and “greenwashing.” Nonetheless,
if environmental objectives are pursued through the Competition Act, less emphasis should be placed on the enforcement of abuse of dominance and competitive collaboration provisions until further guidance from the Competition Bureau can be issued due to a lack of clarity in these areas. Conversely, the Competition Bureau should instead focus its efforts on deceptive marketing claims and mergers, as these two areas for review create less tension between environmental objectives and competition goals, and are the most likely to have a lasting, positive effect on competition and sustainability.