EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

cartel greenwashing might be behind good intentions, companies should be fairly punished. Another risk I see is that undertakings who are allowed to coordinate their actions in the market will have an incentive to provide minimal sustainability benefits at the highest possible prices. It is reasonable to fear that if competition authorities are more accommodating and lenient, there is no guarantee that more sustainable products will be supplied to the market. Moreover, competition authorities will have to strictly require sufficient compensating sustainability benefits, scrutinise and assess these benefits and monitor individual agreements to ensure that sustainability is actually being met and that price increases do not exceed what is needed to cover the costs of the sustainability improvements. This whole process will require a lot of time and effort, at the expense of monitoring and enforcement in other competition areas. Moreover, the fact that undertakings agree on a more sustainable or more environmentally friendly solution means that they actually set a standard and therefore, largely reduce the possibility that they will continue, for example, to develop a similarly efficient solution at lower cost or an even more sustainable or environmentally friendly solution. In the context of promoting cooperation between companies, and thus competition authorities’ contribution to the green transition, it is also important to note the ongoing debate on whether Article 101(3) TFEU is appropriate for the promotion of anything else besides economic objectives, as over-inclusion of social and environmental interests in this Article may lead to confusion as to whether these objectives constitute an accessory condition or a separate ground for exemption. However, the European Commission is of the opinion that agreements aimed at sustainability could benefit from the exemption from the prohibition under Article 101(1) TFEU if the benefits they generate for consumers compensate for the harm they cause them. Such benefits may include, for example, the replacement of an unsustainable product by a sustainable one, thereby improving its durability or other characteristics and consequently its attractiveness to consumers. However, it is necessary to clarify how sustainability benefits should be considered when assessing the exemption under Article 101(3) TFEU and based on what criteria it can be concluded that such benefits can compensate consumers for the harm suffered. Nevertheless, for a certain amount of years, some European competition authorities have already been considering environmental benefits and assessing them with regards to cost-effectiveness requirements. An example is the decision of the Dutch Competition Authority in a case concerning the ‘Chicken of Tomorrow’ initiative, in which suppliers and supermarkets (sector-wide) committed to improve the welfare of chickens by implementing several environmental measures. Since the products then became more expensive and the parties to the agreement supplied 95% of the chicken

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