Walid Chaiehloudj argues that when a scientifically substantiated large but uncertain risk, like environmental damage, conflicts with standard competition analysis, competition authorities need to defer to a precautionary citizen-consumer standard that takes into consideration the risks of that harm.
When we buy something, competition law sees us in one guise only: as consumers. How much are we paying? Do we have enough choice? But we are also citizens, exposed to many potential harms that fall outside the purview of standard competition policy: health, political capture, inequality, and climate change, for example. Mitigation of these concerns and competition failures not only often do not fall under the same analysis, but their prescriptions can conflict.
Take two chemical manufacturers who want to jointly phase out a solvent suspected of causing lasting environmental damage, though one whose full scope cannot yet be measured. If the harm from the solvent turns out to be as bad as feared, the harm to, for example, a river tributary ecosystem and those living alongside it will be irreversible. Acting together, the two firms could retire the substance in favor of an eco-friendly but more expensive alternative. By acting together, they would avoid the “first mover disadvantage” phenomenon: neither will want to unilaterally adopt the more expensive substitute, as it would reduce their competitiveness. However, coordinating to adopt a costlier alternative risks pushing up all market prices. On paper, that makes their agreement a competition problem.
Herein lies the paradox: in some scenarios, even as the environmental risk of the status quo rises, mitigation, which often requires costly intervention, can become harder to justify from the angle of competition law. Part of this is due to the fact that the current competition standard does not consider environmental outcomes, focusing instead on consumer prices. However, it’s also due to the standard’s inability to factor in uncertainty, and much of the risk surrounding environmental degradation comes with an uncertain price tag. Competition law needs a rule for the cases where the costs of environmental harm are potentially severe but still uncertain that they cannot be honestly reduced to the usual cost-benefit arithmetic.
Most of the time, when it comes to environmental concerns, they can be. Where an environmentally motivated agreement produces a benefit that a competition authority can measure—lower emissions worth more than the price increase, say—existing tools already handle it. Some jurisdictions have gone further still. Austria has written into its competition law a presumption that consumers receive a fair share of the benefit whenever an agreement substantially contributes to a climate-neutral economy, even if it raises prices. The Netherlands and the United Kingdom are experimenting with weighting benefits that fall outside the market directly affected by the agreement. These laws have drawn criticism from those who worry the discipline is drifting from its economic core. But they remain, at bottom, an exercise in measurement: authorities are still doing the sums, just with a wider set of benefits and harms on the table.
The harder case is when there is scientific uncertainty, where getting it wrong cannot be undone, and where much of the cost of inaction will fall on people not yet born, who by definition cannot show up in any market to register a preference or be compensated for a harm they will inherit but never chose. The European Court of Human Rights recognized something close to this logic in 2024, ruling that states owe a duty to distribute the burden of climate action fairly across generations, rather than loading it onto those too young, or not yet alive, to have a voice today. Competition law has no equivalent concept—and it needs one, because no amount of better data will resolve this problem in time for the decision that has to be made now.
For this narrow category, and only that one, courts and competition authorities need something more than an efficiency test. What I call a precautionary citizen-consumer standard offers one way forward. But precaution does not make uncertainty disappear, nor does it free an authority from having to assess evidence. It does something more modest: it changes the legal consequences of uncertainty. The question is no longer whether environmental harm can be converted into a sufficiently precise monetary value and weighed against a price increase. It is whether the available scientific evidence identifies a sufficiently serious potential risk even though its probability or full consequences cannot yet be established with confidence. A merely hypothetical or speculative risk would not be enough.
That distinction matters because a precautionary citizen-consumer standard is not an invitation to import whatever social, political or industrial objective an authority happens to favor into competition law. The interest requires robust scientific evidence that makes the risk incontrovertible, even if the numbers attached are uncertain. It must also have an independent foundation in the legal order itself. Environmental protection satisfies that condition in European Union law: the founding treaties require environmental protection to be integrated across EU policies and expressly ground environmental policy in the precautionary principle. The European courts have likewise recognized that precaution may justify giving health, safety and environmental protection precedence over economic interests where sufficiently serious risks remain scientifically uncertain. The authority therefore does not choose the interest; the legal order has already done so and the authority merely adopts it.
This produces a demanding threshold rather than an escape from analysis. Two filters must be crossed. First, the interest at stake must possess the higher-order legal status. Second, the conflict must genuinely resist meaningfully resolution through ordinary competition analysis. Where environmental benefits can reasonably be measured and weighed against higher prices or reduced output, there is no reason to abandon the usual framework: broader efficiency analysis can do the work. The precautionary citizen-consumer standard becomes relevant only where credible scientific evidence points to potentially serious or irreversible harm, while genuine uncertainty makes assigning that harm a reliable number impossible or seriously misleading. It then asks whether a standard competition intervention can respond to the identified risk and whether a less restrictive means could achieve the same protection.
Consider again the two chemical manufacturers seeking jointly to phase out solvent. Suppose credible scientific studies establish a plausible risk of irreversible contamination, but science cannot yet determine precisely how frequently the damage will occur or put a reliable monetary value on its long-term effects. Ordinary balancing risks turning what cannot be reliably quantified into what effectively counts for nothing. The precautionary citizen-consumer standard would allow the authority to acknowledge that uncertainty rather than manufacture a number.
It would not, however, automatically authorize the agreement. The firms would still have to show that their coordination actually addresses the identified risk, that unilateral action would not achieve the same result—for example because of a genuine first-mover disadvantage—and that the restriction goes no further than necessary. Precaution opens the door to a different form of analysis; it does not determine the outcome.
Contrast that with an agreement whose environmental benefits can reasonably be estimated, for example, where firms can establish the expected reduction in emissions and those benefits can meaningfully be compared with the agreement’s effect on prices. However important the environmental objective, that case does not require the precautionary citizen-consumer standard. It belongs within ordinary balancing, potentially including benefits outside the immediately affected market. The dividing line is therefore not between important and unimportant environmental policies. It is between conflicts that remain commensurable and those in which insisting on commensuration would give a false appearance of precision.
This also explains why the standard could be exceptional. Its legitimacy does not derive from being used rarely; its expected rarity derives from the demanding conditions governing its use. If those conditions are satisfied, the standard should apply, however frequently that occurs. But most environmental and competitive interest either converge or can still be meaningfully balanced. Only the “exceptional” category should pass through the precautionary gate.
That narrow architecture answers the legitimate fear that sustainability could become a route towards an unaccountable, anything-goes public-interest standard. The proposal does not ask competition authorities to decide which conception of the public good should prevail. Those choices remain with the political and legal order. Nor does it ask authorities to aggregate environmental, health, political and other social preferences into an enlarged welfare function. It asks something considerably narrower: where the legal order has already singled out an interest for special protection, and where credible evidence identifies a potentially serious or irreversible risk that ordinary welfare analysis cannot meaningfully commensurate, competition law should not treat the inability to calculate that harm precisely as a reason to ignore it.
The precautionary citizen-consumer standard is therefore not necessarily a rival to consumer welfare. It is an “alternative” standard for the point at which consumer welfare can no longer perform the reconciliation that the broader legal order requires. The consumer remains the starting point. Only when the legally defined precautionary threshold is crossed does the citizen enter the analysis—and even then, proportionality, not a green veto, has the final word.
None of this requires rewriting the treaties, an exercise about as likely as it is slow. Nor does this necessarily require legislatures to provide their competition authorities with an explicit and narrowly framed legal basis for applying this exceptional standard, although such legislative intervention would be preferable. Courts, for their part, already have a workable template close at hand: recent French case law has shown how competition authority’s ordinary assessment can remain untouched while separate, external proportionality check is layered on top of it where a fundamental right is at stake. Environmental protection could, in principle, be added to that list.
The consumer that competition law protects and the citizen that environmental law protects are, after all, the same person. For most transactions, that person’s interests as a buyer and as a citizen align well enough that the distinction barely matters. It is only in this small set of cases, where the damage is uncertain, potentially irreversible, and borne by people with no seat at the table, that the law needs to acknowledge the conflict explicitly and, where the precautionary threshold is met, tip the balance in favour of the citizen.
Author’s Disclosure: The author reports no conflicts of interest. You can read our disclosure policy here.
Author’s Disclaimer: This article represents my current and strictly personal views and does not reflect any other institution or person’s views.
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