EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

restrain competition. For example, the sustainable measures agreed on might result in a general price increase of the products available to consumers, or end up limiting their options. Besides the heated academic discussion in this context (among many others, Claassen and Gerbrandy, 2016; Gerbrandy, 2017; Lianos, 2018; Blocks, 2019; Holmes, Middelschulte and Snoep, 2021), diverse national competition authorities and the European Commission have also acknowledged the controversy regarding sustainability agreements and Article 101 TFEU and are working on it. The Dutch competition authority, named Netherlands Authority for Consumers and Markets (ACM), has been particularly busy in this regard, and its proposals will be object of analysis in this paper. This paper focuses on the exception of Article 101(3) TFEU as a possibility to promote sustainability agreements. Article 101(3) TFEU states that agreements, decisions, or concerted practices declared anticompetitive according to Article 101(1) TFEU might be excepted if they: 1. contribute to improving the production or distribution of goods or to promoting technical or economic progress (efficiency gains); 2. allow consumers a fair share of the resulting benefit; 3. their conditions are indispensable to the attainment of these objectives; and 4. sufficient competition remains in the market. In the context of sustainability agreements, most of the questions arise regarding the first two conditions, i.e., efficiency gains and fair share: should non-economic benefits (sustainability benefits) be taken into account to calculate efficiency gains? If so, how can they be measured? What is considered a ‘fair share’ to consumers? Does it allow to take into account benefits that are directed to most society at large, or also affecting a different group than the consumers suffering the consumer-welfare loss, or benefits that will occur in a much longer term? Following the heated debate in this regard, and numerous calls for clarity from stakeholders, the Commission has acknowledged the need to provide clarity regarding the exception of Article 101(3) TFEU and sustainability agreements and has stated that new guidelines regarding the applicability of this provision will be issued by the beginning of 2024 (European Commission, 2021). This paper wants to contribute to the debate and help to bring some clarity to the discussion by analysing the Draft Guidelines on sustainability agreements issued by the Netherlands Authority for Consumers and Markets (ACM) (Netherlands Authority for Consumers and Markets, 2021) and whether the solutions proposed would be adequate for a European approach to sustainability agreements. The ACMpublished on 26 January 2021 its revised Draft Guidelines on sustainability agreements (‘Draft Guidelines’) containing a flexible and open approach towards sustainability agreements, together with a joint economic report on the methods to quantify the efficiency gains of environmental sustainability initiatives (in cooperation with the Greek authority) (Netherlands Authority for Consumers

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