EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

considering this principle in relation to Article 101(3) TFEU, full compensation of relevant market consumers is not necessary to fulfill the fair share requirement. The memo is a reminder for the need of a consistent interpretation of competition rules with other objectives of the Treaty (Article 7 TFEU concerning consistency between the different EU policies and activities; Article 11 TFEU regarding the integration of environmental protection requirements in the different policies and activities with a view to sustainability development, and the above-mentioned Article 191(3) TFEU). In addition, for this more extensive interpretation regarding environmental-damage agreements to be applicable, the ACM requires in the Draft Guidelines that the agreement must contribute efficiently towards the fulfilment of an international or national standard or concrete policy objective. On the other hand, the ACM in the Draft Guidelines states that, with regard to other sustainability agreements that do not fall within the category of environmental-damage agreements, users need to be fully compensated for the harm caused by the restriction of competition. These other sustainability agreements might concern, among others, working conditions, animal welfare, social sustainability, or human rights. Since the negative externalities are not present, the reasoning that the ACM applied to environmental-damage agreements and the ‘polluter pays’ principle do not apply in these cases. Thus, the ACM concludes that for these other agreements the benefits for the users of the product (as a group) must offset the anticompetitive results (e.g., price increase), even when a concrete policy objective existed. While there have been many scholarly discussions regarding the notion of ‘fair share’ and, in general, the requirements of Article 101(3) TFEU and the necessity (or not) of broadening or changing the consumer welfare standard (among many others, Lianos, 2018; Nowag, 2019; Gerbrandy, 2019; Witt, 2019, Dunne, 2020) the ACM takes a practical and original approach by differentiating between environmental-damage agreements and other sustainability agreements. In short, environmental-damage agreements can fall easier under the exception of Article 101(3) TFEU: as opposed to other sustainability agreements, the ACM, when assessing whether consumers receive a ‘fair share’ of the benefits of the agreement, does not require that the benefits of such agreement fully compensate the competition harm to the relevant market users, but considers that in those cases it can be fair to consider the benefits to others. As mentioned in the previous section, a quantitative assessment based on environmental prices would be conducted in those cases to measure the benefits. On the contrary, regarding other sustainability agreements, full compensation of the relevant market users is required, and a ‘willing-to-pay’ study is suggested to measure whether the consumers believe that the benefits offset the damage to competition.

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