EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

natural resources. Thus, the ACM considers that it can be fair not to fully compensate users in those cases, since their demand for the product essentially creates the problem for society, and as long as the agreement contributes to the compliance with an international or national standard or concrete policy objective. In such cases, the consumers of the product will enjoy the same benefits as the rest of the society. On the other hand, as regards other sustainability agreements, which concern aspects such as working conditions, animal welfare, social sustainability, human rights, etc., the ACM considers that full compensation for the harm to competition of relevant market users is necessary. The distinction is based on the fact that, in these cases, the element of the negative externalities and inefficient usage of common resources is missing. However, in my opinion, this distinction does not seem strictly necessary, and the arguments used by the ACM do not seem to rule out that the broad interpretation of the fair share requirement could be used as well for these other types of agreements.The requirement of compliance with an international or national standard or concrete policy objective could have more weight to extend a fair share including benefits to society and not full compensation of market users (as long as they also receive the same benefits as society) than the actual differentiation between environmental damage agreements and other sustainability agreements. Second, regarding the assessment of sustainability benefits in order to evaluate whether the agreement produces efficiency gains, the ACM considers two exceptions which can be assessed through a quantitative assessment: when the parties to the agreement constitute less than 30% of the relevant market or when the harm to competition is obviously less than the benefits that the agreement brings. In the rest of the cases, a quantitative assessment will be conducted. In the case of environmental-damage agreements, the ACM refers to the use of environmental prices to help the assessment, while, in other sustainability agreements, when that is not possible, the ACM refers to the use willingness to pay studies. However, it has been submitted that, despite the existing tools, the economic assessment of non-economic benefits brings several difficulties and uncertainties, and, therefore, a broader use of the quantitative method can be explored. Besides the requirement of objective benefits based on existing studies, adding the previously mentioned requirement of compliance with an international or national standard or concrete policy objective, or even concrete examples, could allow a broader use of a qualitative assessment. To conclude, the ACM’s approach is a big step in the right direction and we encourage the Commission to thoroughly study this approach. Still, the above mentioned remarks could be taken into account in order to ensure that companies are encouraged to pursue sustainability agreements as part of the collective effort needed to pursue sustainability (in all its environmental, social and economic aspects).

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