EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

While benefits deriving from the agreement are required to be objective and based on existing studies, more focus can also be placed on the objectives of the agreement. For example, the sustainability objectives that our society is aiming for are specified, in general, in the SDGs and Paris agreement and its related strategies, and, even more locally, in the EU Green Deal and its derived strategies. When the agreement pursues pre-established public objectives, whose benefits can also be objectively substantiated, a broader use of a qualitative assessment could be promoted. For example, in order to ensure legal certainty, certain specific scenarios related with these objectives could be included within the exception regarding ‘obvious cases’ contemplated by the ACM. Such an approach would benefit legal certainty and encourage companies to safely enter into sustainability agreements. At the end, all efforts -including those of private actors- are needed for the accomplishment of these objectives. 4. Conclusion The Dutch ACM has had a long experience regarding sustainability agreements (e.g., Energieakkoord (2013) Kip van Morgen (2015)). Thus, the approach taken by the Dutch ACM in its revised Draft Guidelines concerning sustainability agreements should be carefully studied in view of the future guidelines being prepared by the Commission regarding Article 101(3) TFEU. The ACM recognizes that agreements between undertakings can contribute to achieving public sustainability objectives, and takes a practical and comparatively progressive approach to the interpretation of Article 101(3) TFEU. The guidelines provide companies with more certainty when entering into these agreements, which, at the same time, encourages them to do so. In this paper, focus has been placed on the strategy stated by the ACM in answering whether a sustainability agreement provides efficiency gains and allows consumers a fair share of the resulting benefit. The ACM seems to allow certain sustainability agreements to fall under the exception of Article 101(3) and explains how non economic benefits (in this case, sustainability benefits) will be measured and what a ‘fair share’ for consumers is in those cases. In this paper, several remarks to the ACM’s approach have been made, and can be summarized as follows: First, the ACM makes a big differentiation between environmental-damage agreements and other sustainability agreements that has a crucial impact on the application of Article 101(3) TFEU. Regarding environmental-damage agreements, understood as those aiming at reducing environmental damage, the ACM maintains a broader interpretation for the requirement that consumers should be allowed a fair share of the benefits of the agreement. In the case of these agreements, benefits relate to the reduction of negative externalities in production or consumption, that have as a result a more efficient use of scarce

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