EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

meat in the market, the agreement clearly fell under the scope of Article 101(1) TFEU (and Dutch law as well). But the question as to whether the agreement could fall under the exemption under Article 101(3) TFEU then arose. In order to answer this question, the Authority for Consumers & Markets (ACM) carried out a study assessing the willingness of Dutch consumers to pay for certain sustainability measures. Although this study showed that the consumers in question were to some extent willing to pay more for environmentally friendly products, the conclusion that those consumers would benefit from the agreement between the undertakings (thereby fulfilling the second condition of Article 101(3) TFEU) could only be reached when their willingness to pay actually exceeded the associated costs. After a thorough analysis of the Chicken of Tomorrow agreements and requirements, the ACM found that the improvements offered by the initiative were limited: the chickens in question benefited from only a little more space and actually lived only a few days longer than the other standardly raised chickens. Moreover, these improvements were more expensive for consumers. The ACM therefore concluded that the agreements to remove ordinary chicken meat from supermarket shelves did not meet the criteria necessary for granting the exemption in question. In this context, I would also like to mention the opinion of the Dutch Competition Authority that competition policy plays only a modest role in achieving the world’s sustainability goals, but that competition authorities could at least keep an open mind when dealing with private initiatives leading to agreements contributing to a more sustainable world. The fundamental question that must be answered, is whether undertakings can be expected to produce more sustainably if they are allowed to cooperate in a cartel agreement rather than in a natural competitive environment. Assuming that consumers care about sustainability, it seems logical that undertakings would be interested in investing in a good image in order to attract more customers. Sustainability is a product attribute that consumers are increasingly interested in and therefore undertakings use it when competing with each other and in order to win over customers. For example, many undertakings are now moving towards ‘green’ marketing in the area of eco-friendly solutions or organic products, which many customers welcome, as they have no problem paying extra for products and services that are sustainable and environmentally friendly, and, thus, bearing higher costs of undertakings caused by these solutions. On the other hand, when companies coordinate their sustainability efforts, this leads to a lower level of sustainability than in case of competition, and the benefits may not always outweigh the damage. Moreover, if undertakings coordinate their investments in sustainability, this allows them to coordinate product prices. It is therefore clear that the line between

26