EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

and Markets (ACM) and Hellenic Competition Commission (HCC), 2021). The Draft Guidelines offer three main opportunities for sustainability agreements: first, the ACM clarifies which agreements may fall outside of the scope of Article 101 TFEU; second, the application of the exception of Article 101(3) TFEU is discussed; finally, the ACMdiscusses several enforcement considerations and alternatives for those cases where an agreement cannot be found outside the scope of Article 101 or within the exception of Article 101(3). The ACM proposes a model based on cooperation and flexibility, where undertakings are welcome to consult any concerns regarding the potential anti-competitiveness of the agreement in which they want to be involved. In this paper, we focus on the core of the Draft Guidelines, which is the application of Article 101(3) TFEU. Specifically, focus is placed on the approach taken regarding the questions concerning the efficiency gains and fair share requirements. First, the ACM’s approach regarding the assessment of sustainability benefits as efficiency gains will be discussed. Questions regarding the measurement of sustainability measures as non-economic benefits are examined. Second, the ACM’s approach regarding the requirement of a ‘fair share’ to consumers is analysed. In this regard, the ACM differentiates between environmental-damage agreements and other sustainability agreement, which impacts to a big extent the scope of application of Article 101(3) TFEU. This innovative approach and its consequences will be the object of discussion, and remarks will be submitted. Finally, conclusions will be reached regarding whether the Dutch Draft Guidelines could be a good example for a unified EU approach for sustainability agreements, or which aspects could be improved. The first criteria for application of the exception of Article 101(3) TFEU requires that the agreement carries more benefits than offsets, or, in other words, that the agreement offers efficiency gains. However, it is not entirely clear whether sustainability objectives as non-economic benefits can be taken into account. As from the end of 1990s, the European Commission initiated a process of economization and modernization of EUCompetition law that placed economics and efficiency at the center of the competition law analysis. The so-called ‘more economic’ approach has brought different developments in the area, such as the focus on the effects on the market of a specific practice to determine whether it is anticompetitive rather than focusing on its form (Jones, Sufrin, and Dunne, 2019, pp. 28–35; Blockx, 2019, p. 477). Also, when referring to the effects on the market it is meant the economic effects on the market. Consequently, the resulting approach is based on the concept of consumer welfare and focuses on 2. Assessment of efficiency gains and the ACM’s approach regarding measurement of sustainability benefits

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