EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

cardboard packaging. This agreement results in a modest increase of production costs but it produces benefits for the environment, and promote a more responsible use of raw materials. In such a case, the ACM considers that the possible price increase for buyers is modest and only temporary, and benefits clearly overrun the offsets. It seems a strong emphasis may be needed on the very limited price increase (or limitation of user’s choices) in order to apply this exception. Regarding sustainability agreements that do not fall under these two situations, the ACMmakes a clear distinction between environmental-damage agreements and other sustainability agreements. This distinction affects the scope of the exception of Article 101(3) (i.e., who is granted a ‘fair share’ of the agreement -which will be discussed below) but also the quantitative assessment of the agreements. ‘Environmental damage agreements’ are those concerning the reduction of negative externalities and a more efficient use of natural resources. They aim at avoiding damage to the environment in the production and consumption of goods and services (e.g., emission of harmful air pollutants and greenhouse gases, waster of raw materials, etc., that results in atmospheric heating, a reduced biodiversity, or less healthy livelihoods, therefore affecting society as a whole). The benefits of environmental-damage agreements can be expressed in monetary terms through the so-called environmental prices (or ‘shadow prices’), which reflect the price that society assigns to the harm of the environmental damage in question. Quantitative assessment of the benefits of environmental-damage agreements is facilitated through environmental prices. However, it has been pointed out that the relation between the avoidance costs and the utility loss caused by externalities is not so strong, and the actual damage might differ from avoidance costs (OECD Directorate for Financial and Enterprise Affairs Competition Committee, 2020, pp. 16–17). On the other hand, the other sustainability agreements cannot usually use environmental prices. The ACM proposes the option to determine what value can be assigned to the improvements derived from the agreement in question by discerning the valuation of users of a certain product or product feature (e.g., animal friendliness). The ACM refers to the willing-to-pay study. This method can either determine what consumers are willing to pay on the basis of revealed choice behaviour (revealed preferences) or on the basis of choices consumers would make in certain hypothetical scenarios (stated preferences). The ACM used the latter willingness to pay study in the well-known Kip van Morgen (Chicken from Tomorrow) case, where the ACM concluded that the animal welfare benefits derived from the agreement between several supermarkets and poultry producers were not sufficient to justify the anti-competitive effects (increase of prices) (Netherlands Authority for Consumers and Markets, 2015). By using a direct evaluation method (a technique that asks consumers which value they ascribe to a product) such as the ‘willingness to pay’ method used by the

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