EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

However, we could wonder if such a distinction is necessary. Following the explanation of the Dutch ACM in the legal memo ‘What is meant by a fair share for consumers in Article 101(3) TFEU in a sustainability context?’, and the referred case law, and always saving the distance between those cases and the situations discussed in this paper, the ACM submits that out of market benefits can be taken into account as long as users of the relevant market receive at least some substantial part of those benefits. Also, the ACM refers to the obligation to apply the competition rules in a manner consistent with the objectives of the Treaty. Article 11 TFEU demands that ‘environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’. The ACM also refers to the ‘polluter pays’ principle, but the previous arguments seem sufficient to justify that the ‘fair share’ requirement does not strictly require full compensation of relevant market users, especially in the pursuit of sustainable development.These arguments do not require a distinction between environmental damage agreements and other agreements but could support the application of the broad ‘fair share’ interpretation for both cases. Instead of this differentiation, the requirement disposed by the ACM asking for compliance with an international or national standard, or concrete policy objective, could be imposed as the condition necessary for all sustainability agreements in order to extend the fair share requirement as to include benefits to society and not full compensation of market users (as long as they also receive the same benefits than society). On the other hand, the quantitative assessment of the benefits deriving from environmental-damage agreements are said to be easier to quantify than those from other sustainability agreements. The Dutch ACM might have been more inclined to introduce this distinction in order to show its compromise to fight the climate emergency and promote sustainable development, and defend the role that competition law can have, but at the same time avoiding most of the complications that come with the measurement of non-economic benefits. Still, none of them come without difficulties (see above previous section). In this regard, attention can be directed to the exception stipulated by the ACM in the Draft Guidelines regarding ‘obvious’ cases in which benefits clearly offset harm to competition. In these cases, there is no need for a quantitative assessment of the benefits, and the agreement would fall under Article 101(3) TFEU after a qualitative consideration. Given the difficulties deriving from the quantitative assessment of sustainability benefits, a broader use of the qualitative assessment, going beyond the ‘very obvious cases’, can be explored. As previously mentioned, more attention could be placed on the fact that certain agreements aim to pursue pre-established objectives (derived from international or national standards, or concrete policy objectives, which are not mandatory for the companies involved).

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