Sustainability and EU merger control

This article analyses the role that sustainability plays within the current system of European merger control. Sustainability plays a role in market definition and market appraisal. The Commission has extended the boundaries of the analysis to consideration of innovation spaces within the context of harm to innovation competition as a theory of harm. Arguably, the rationale for doing so should be extended to considerations of efficiencies and failing firm defence. More could also be done in measuring sustainability, in cooperation with environmental and other agencies with a regulatory remit. Beyond this, changing the framework of merger control to assess the effects of mergers on sustainability may act as a Trojan horse for consideration of other non-market related factors, opening the door to undesirable consequences. Overall, the increasing consumer awareness of green products suggests that the preservation of competitive markets may be the best contribution to sustainability that merger control can bestow.