EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

TEU Competition Law and Sustainability: key aspects from the Dutch ACM Draft Guidelines towards a unified EU approach María Campo Comba Erasmus University Rotterdam Erasmus School of Law, International and European Law Department Burgemeester Oudlaan 50, Rotterdam, 3062 PA The Netherlands e-mail: campocomba@law.eur.nl Abstract Following the many demands to have clarity on when cooperation agreements pursuing sustainability objectives are compatible with EU competition rules, and, specifically, when can they fall under the exception of Article 101(3) TFEU, two key concepts will be discussed: ‘efficiency gains’ and ‘fair share’. The starting line of the discussion is the approach taken by the ACM in the recent Draft Guidelines on Sustainability Agreements (second draft version, January 2021). While some consider that the ACM goes too far broadening the conditions for exempting sustainability agreements, others consider the proposal too narrow. This paper analyses the solutions proposed by the ACM regarding the concepts of efficiency gains and fair share, and evaluates its possible adequacy at EU level in the upcoming guidelines since, ideally, all the EU countries should follow the same interpretation to avoid market inequalities in this regard. The solutions proposed by the ACM are studied in order to determine what could/should we take at EU level (or what not) or whether a different underlying approach could be taken. Keywords: Article 101(3) TFEU, Draft Guidelines ACM, efficiency gains, fair share, sustainability agreements 1. Introduction Sustainability has been at the forefront of the discussions within the competition law community for some time. All the efforts are needed to fight against the climate emergency, achieve the UN sustainable development goals (SDGs), or, even more locally, the EU Green Deal objectives. The efforts of the private sector are also necessary. While there are types of cooperation based on private self regulation pursuing sustainability objectives that do not restrict competition and do not fall under the application of Article 101 TFEU regarding the prohibition of anti-competitive agreements, there are also sustainability agreements that might

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