Sustainability in the wine sector as a source of derogations to European Competition Law

EU general principles governing internal market (namely, competition principles) and Common Agricultural Policy have an intersection point, which usually goes by the name of “agricultural exceptionalism”, which – at least in its European sense – has now its legal basis in the TFEU (as well as it had it, in an historical perspective, since the Treaty of Rome) and its economic grounds in the very particular structure of the agricultural sector, in its “constitutional” vulnerability. Such legal basis, claiming us to recall Article 42 TFEU, implies an automatic and contextual referral to Article 38 TFEU (outlining the application field of Articles 39-44, thus including Article 42 as an essential element of the CAP), but also to the aims and objectives of the CAP itself, set forth in Article 39, which seem unchanged but, in fact, although remaining still, they have continuously changed their meaning. This is how, when recalling the basic exception concerning competition law and agriculture («The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the European Parliament and the Council»), we can’t neglect that «account [must be] taken of the objectives set out in Article 39», nor that the latter is calling EU Institutions not only «to increase agricultural productivity» – obviously – but also to do that «by promoting technical progress», by ensuring a «rational» development of agricultural production and by granting an «optimum» utilisation of the factors of production. Since at least the 2003 CAP reform (but we could also dare more), the practical identification between «rational» and «sustainable», and still between «sustainable» and «optimum» is undeniable. And, should we extend our concept of “sustainability” even beyond its environmental borders, taking into consideration also its social and economic dimension (not less essential than the environmental one), further communication lines can directly be established also toward the aims «to ensure a fair standard of living for the agricultural community», «to stabilise markets», «to assure the availability of supplies» and, finally, even «to ensure that supplies reach consumers at reasonable prices» (remembering, under cover of the International Covenant on Economic, Social and Cultural Rights, that no availability really exist without accessibility and that «accessible» means also «affordable»). This is the legal framework in which the «Vertical and horizontal initiatives for sustainability» provided for by Article 210a of EU Regulation No. 1308/2013 – be they actually implemented in a horizontal or in a vertical manner, e.g. in the wine sector – must be considered. And in light of which only we can fully understand the actual meaning of this new legal “tool” (including the need for a strict interpretation of the scope of Article 210a, and the severity of applicable sanctions), as well as the types of sustainability agreements which are likely to be covered by this exception and the subsequent possible (economic) implications and opportunities for each agricultural sector. This paper is an attempt to analyze the specific opportunities for the wine sector, rising from such new tools, together with the implementation criticalities, both because of the problems in fulfilling contracts and (following an alert from the OIV) of the limited relevance attributed to the economic and social dimensions of sustainability.