The cartel prohibition and sustainability
The cartel prohibition and sustainability
The cartel prohibition
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Sustainability initiatives and the cartel prohibition
Sustainability Agreements guideline
ACM’s Draft Guide to Sustainability Agreements appears to facilitate the efficiency defence better. Firstly, with regard to the benefits from the first condition, because it looks at the objective benefits not only for the user, but also for society in general. The circle of users in the second condition is also expanded to include future and indirect users. Benefits outside the user circle can also be taken into account when it comes to agreements to limit environmental damage. If an agreement contributes to a policy goal from an (inter) national standard to which the Dutch government is bound, for example from the Paris Agreement, it is also not required to compensate the users for the perceived disadvantage by means of the agreement. The other conditions for the efficiency defence remain in force. The Guideline also mentions a few more categories of sustainability agreements that are not restrictive of competition because, for example, they do not influence important competition parameters (such as price, quality and innovation).
These additions to the current policy increase the scope of the efficiency defence when it concerns sustainability agreements. As long as competition is not unduly restricted and it is a necessary restriction, a sustainability agreement by means of this Guideline may soon be permitted. In addition, ACM offers the possibility that agreements in the field of sustainability that have been discussed with ACM in time and in which ACM has not seen any major risks, but which later nevertheless prove to be contrary to competition law, are not eligible for a fine. This also applies to sustainability agreements that have been made publicly known and where the Guidelines have been followed in good faith. However, this remains risky, because the Dutch cartel prohibition must be interpreted and applied in the same way as the European cartel prohibition by ACM if the Dutch Competition Act remains unchanged. At the European level, such a relaxation of competition law in the context of sustainability has not yet been achieved. In any case, cases with an international character still risk a fine from the European Commission.
Bill on room for sustainability initiatives
Fortunately, the legislative proposal on space for sustainability initiatives can further improve the position of companies that want to make sustainability agreements. If the above-mentioned Guideline does not offer a way out, a company can request a ministerial regulation on the basis of the bill. Once this request has passed a successful assessment (looking at, among other things, feasibility, enforceability and proportionality) and the entire procedure has been completed (public consultation and a preliminary procedure in both Chambers of Parliament), the scheme can be adopted. After that, there is a five-year period in which the scheme will either lead to regular legislation if it is successful or it will lapse if it is not successful. This bill offers a solution to conflicts with competition law because competition law is in principle not applied to government regulation. At the beginning of this year, the bill will be subject to plenary debate in the Second Chamber of the Dutch Parliament. It will therefore take some time to come into effect. Nevertheless, the European Commission also recognizes that it is time to become more sustainable in the field of competition law. Hopefully, the necessary developments will also take place on European level soon.
Do you want to start a collective sustainability initiative, and do you have doubts in your self-assessment whether this constitutes a violation of competition law? Or are you unfortunately already involved in a dispute about this? Then contact Law & More. Our lawyers are specialized in both competition law and sustainability and are happy to help you.
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