EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

economic efficiency. This is reflected in the 2011 Commission’s Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements (European Commission, 2011). Consumer welfare, meant as the ability of consumers to benefit from lower prices and higher output, is placed at the center of the economic analysis. Within the context of Article 101(3) TFEU, losses and gains to consumer welfare are calculated and, if costs are greater than benefits, the agreement is generally considered contrary to EU competition law. Thus, when considering the anti competitiveness of an agreement or conduct, competition law relies on economic efficiency and does not seem to take into account (or only to a marginal extent) non-economic objectives (Lianos, 2018, p. 7). This approach has been challenged in the last years, and discussions regarding the pursuing of public interests have been raised (Dunne, 2020). The ACMdeparts from this narrower interpretation and considers that sustainability benefits can be taken into account in the analysis. In its Draft Guidelines on sustainability agreements, the ACM introduces the requirement that the benefits offered by the agreement must be objective (para. 35). They can be justified on existing studies by knowledge institutions, government agencies, international organizations, NGOs, or studies of their own. However, complications arise regarding whether those non-economic benefits must be quantified and, in that case, how should they be quantified. When assessing the efficiency gains, it is necessary that benefits are identified and described as concretely as possible. The ACM distinguishes between agreements with benefits that can be quantified through a qualitative assessment and those which would require a quantitative assessment to determine the efficiency gains. Given the difficulty quantifying the sustainability benefits, the ACM states that there is no quantification needed when the parties have only a limited combined market share of less than 30 per cent or when the harm to competition is obviously smaller than the benefits of the agreement (e.g., agreements that will lead to a limited price increase or limited reduction in choices while users will obviously receive large benefits in return). The first exception seems logical, since there is a considerable amount of competition remaining in the market and therefore it can be assumed that the benefits of the agreement will have to prove its value in the market. The second exception brings to mind some of the uncertainty existent in the competition law assessment before the economization process of competition law. It seems that a rough estimation of benefits and offsets would still be necessary (Gassler, 2021, p. 438). The ACM, given the difficulties regarding the assessment of non-economic benefits, takes a pragmatic approach and further clarifies this exemption with an example. Under Example 4 of the Draft Guidelines, companies make an agreement involving the promotion of re-using paper and

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