Rinse, Repeat, Reject: ‘Washing’ Claims in Antitrust
Although not a single, Mitski’s “Washing Machine Heart” ranks among her most popular songs. Its insistent drumbeat echoes the spin cycle of an old washing machine, recalling the singer’s frustration with her romantic life.
Competition policy has its own fixation on “washing.” In this context, “washing” describes efforts by undertakings to invoke public policy goals—such as sustainability, privacy, or sovereignty—to justify anticompetitive conduct. The terminology has proliferated. “Greenwashing” is now standard; “privacy-washing” has gained traction; and “sovereignty-washing” has entered the lexicon. Many commentators now treat these risks as widespread and in need of urgent attention.
That concern is overstated. European Union competition law leaves little room for undertakings to defend otherwise anticompetitive conduct by invoking public policy objectives. The risk of successful “washing” strategies remains low under Article 101 of the Treaty on the Functioning of the European Union (TFEU), and almost nonexistent under Article 102 TFEU.