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This article investigates the purpose and workings of EU competition law and policy: how does the protection of competition promote welfare? It scrutinizes the claim that sustainable consumption and production (SCP) requires flexible rather than strict enforcement of Article 101 TFEU. Flexible antitrust proponents argue that SCP requires sector-wide private coordination, as manufacturers of sustainable products suffer if consumers can opt for cheaper, less sustainable products. Four main arguments build on compliance with, respectively, the constitutional context of EU competition law, the more economic approach, the legitimate objective doctrine, and the useful effect doctrine. This article questions all four arguments. Integrating principle and practice, the article shows that strict competition enforcement is the way forward to promote welfare, in this case SCP. Problems of under-regulation should be addressed by the regulatory State.

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The European Union (EU) Commission proposes to ‘green up’ its enforcement of Article 101(3) TFEU to allow producers to collectively overcome so-called first mover disadvantages that would result from inefficient market regulation. The Commission's reboot focuses on the last three exemption conditions. First, the consumer benefit condition is customized to use collective consumer benefits to determine whether consumers receive a ‘fair share’ of the benefits established under the efficiency condition. Here, the Commission bypasses the Dutch proposition to also take account of non-consumer benefits when investigating whether consumers are compensated for anticompetitive harm. Second, the indispensability condition is tasked to filter out greenwashing. Third, the residual competition condition is trusted to allow private collective action insofar it does not eliminate competition on price and/or innovation. Discussing both EU and Dutch proposals, this article finds that greening up Article 101(3) brings competition policy outside the limiting principles that define objective and effective competition enforcement in terms of voluntary exchange.