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AbstractIn light of re‐conceptualizing a European social market economy, this contribution considers competition law's position in the European economic constitution. The economic constitution captures the economic foundation of European integration as based on the market mechanism. The contribution asks whether the change towards a 'more economic approach' to competition law implies an alienation of competition law from societal challenges. The contribution considers whether this interpretation, with competition law being such an integral part of the European economic constitution, should change in light of the constitutional goal of a European social market economy. To do so, the article sketches the fundamental place of competition law in the European economic constitution and shows how its interpretation has become more economics‐based. It highlights some of the problematic aspects of this change and analyzes these findings from the perspective of an economic constitution serving a social market economy.

It is undeniable that there is a tension between European competition law and sustainability focused agreements between undertakings. Whether it should, and how it could, be resolved is less clear. The necessity of providing 'more room' for sustainability-focused agreements is contested. Set within the wider discussion on the (proper) goals for European competition law, these public interests are often seen as alien to an economic approach of competition law. By taking developments in the Netherlands, where the tension seems to play out most visibly, as starting point, this article first sets out the argument that there is a sustainability-deficit within current competition law, and delineates where this deficit is 'located'. The article then provides an overview of possible solutions. These are not (all) immediately applicable but would need tweaking existing competition law's instruments. Thus both to the interpretation of the Article 101 (3) TFEU exception clause and to the doctrines relating to placing entities or activities outside the scope of Article 101 (1) TFEU are discussed, as is the underlying rationale relating to the dichotomy between market and government.

Demands have been growing upon firms to take actions in the interests of workers, the environment, local communities, and others. Firms sometimes have felt they could best discharge such responsibilities by cooperating with other firms. This, however, is suspect from the point of view of a purely economic interpretation of competition law, since interfirm agreements may raise prices and thus lower welfare for consumers. Should competition law remain focused on competition enhancing economic welfare, or be reformed to allow for acts of cooperation that are socially beneficial? To answer this question, the article provides a philosophical reevaluation of the deep-seated view that firms are merely private actors. It argues that demands of political legitimacy should also be addressed at firms cooperating together, and that standard views of democratic accountability should be broadened, introducing a model of delegated, sequential decision making which allows regulatory agencies and parliaments to control interfirm agreements.