EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

ACM, it is possible to assess goods that otherwise would be difficult to value (i.e., non-economic benefits). However, the ACM recognises in its Draft Guidelines that such a method is not easy. Indeed, it comes with several inconveniences. For instance, results may be influenced by the chosen structure of the survey or wording of questions. Moreover, it has been showed that the actual willingness to pay frequently differs from the stated willingness to pay (bounded rationality of consumers) (OECDDirectorate for Financial and Enterprise Affairs Competition Committee, 2020, pp. 16–17; White, Hardisty, and Habib, 2019; Volpin, 2020, pp. 3–4). Finally, the evaluation can become significantly expensive due to the need of expert opinions or studies (Gassler, 2021, p. 103). There are multiple evaluation methods that can be used. Indirect evaluation methods, which determine the value of a good that has not been priced from the value of another good which price exists in the market, have as an advantage that they are based on real decision-making situations. However, the big limitation is that the demand for the priced good should be directly connected to the demand for the non-priced good in order to apply which methods (OECD Directorate for Financial and Enterprise Affairs Competition Committee, 2020, pp. 16–17). However, on top of the disadvantages of a method itself, the existence of a plurality of methods becomes a practical problem, since different evaluation methods can be used for different improvements regarding sustainability objectives. When the resulted prices vary depending on the method chosen, uncertainties arise, which makes the assessment vulnerable. (Gassler, 2021, p. 103). More importantly, it is not always possible to economically quantify all aspects of sustainability goals (e.g., think of the incommensurability of human life) (Gerbrandy, 2019, p. 116). Thus, the quantitative assessment of non-economic benefits is indeed not an easy task, and the uncertainties around it might prevent businesses to enter into sustainability agreements. A broader use of the qualitative assessment might allow taking into account all the specialties of sustainability benefits (see below for further discussion in this regard). 3. ‘Fair share’ to consumers: ACM’s differentiation between environmental-damage agreements and other sustainability agreements The second prerequisite for the application of the exception of Article 101(3) TFEU requires that consumers must receive a fair share of the benefits resulting from the agreement. In other words, consumers should be compensated for the harm caused by the restriction of competition (e.g., increase of prices, limitation of products, etc.). In the previous section, the controversy regarding non-economic benefits and its measurement has been analysed. However, when referring to the ‘fair share’ it is

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