Sustainability and Competition Policy in Europe: Recent Developments

Unofficial AI-generated summary based on the public title and abstract. Not an official translation.

🔬研究者:EU競争法とサステナビリティ協力の制度的枠組みを整理した最新サーベイとして、研究の土台に有用。

🏢実務担当者:企業の法務・サステナビリティ担当者が、競合他社との協力における独占禁止法リスクを理解し、協業の可能性を探る手がかりになる。

🏛政策担当者:競争当局がサステナビリティ協定に関するガイドラインを整備する際の参考モデルとして示唆に富む。

We have made amazing progress in integrating climate change and sustainability considerations into competition policy in recent years. In 2018, this was a fringe area inhabited by nerdy eco-warriors and hipster antitrusters (like me). Who would have believed that this would be a mainstream issue in 2023 with most European competition authorities focused on it and bringing out policy statements, guidelines (and draft guidelines), and even changes to their laws. All leading legal and economic competition firms have people focused on it. This is against the background of ‘green deals’; the ever-growing recognition of the existential threat that climate change poses for humanity; and growing recognition that, whilst competition policy is not the answer to climate change, it cannot just stand aside naïvely hoping that other people and tools (regulation, technology, individual corporate initiatives, etc.) will solve all the problems. Not only must competition policy not stand in the way of the fight against climate change and the transition to a sustainable economy, it can play its part in achieving this. This survey is structured as follows: The relationship between sustainability and competition policy. The new EU guidelines on sustainability cooperation. Initiatives on sustainability and competition beyond the EU. A look at some recent antitrust cases. Some challenges for the future. Great progress has been made in obtaining greater clarity on sustainability agreements that will not fall foul of competition law. This gives the green light to businesses to work together to fight climate change and put their industry onto a sustainable basis. This review summarises the recent guidelines on this (particularly the European Commission guidelines of 1 June 2023) and looks at some recent decisional practice. More remains to be done and it concludes with some of the key challenges for the future. Some may still ask ‘what has competition policy got to do with climate change and sustainability?’ The answer is quite a lot! Competition policy and competition are great. Competition can drive companies to innovate and produce more sustainable products. However, competition also drives companies to seek the cheapest inputs and use the cheapest methods of production: sadly, these are not always the most sustainable. Furthermore, conventional competition policy and accounting principles do not take account of many of the ‘true’ costs of production—for example pollution generated or toxic waste dumped into the sea are treated as so-called ‘externalities’-ie costs for society that never appear in the P&L of corporations. Regulation is often the most appropriate way of dealing with (for example) environmental problems. However, regulation is limited to individual jurisdictions and is often too slow coming, and frankly lacking in ambition. If we had appropriate carbon pricing and taxes, etc., the whole issue of competition policy and sustainability would not be nearly so relevant. Similarly, whilst businesses can, do, and, indeed must, compete where they can on the sustainability of their products, they will often face (at least in the short term), a cost disadvantage and therefore a ‘1st mover disadvantage’. This can lead to these products, not being produced at all, or to sustainable products remaining niche markets bought only by the wealthy and those particularly concerned about climate change (do you recognise yourself here?). This is in a situation where we need to transform whole sectors of our economy onto a sustainable basis—and fast. In these circumstances, businesses need to work together to make this transition. This is where competition law comes in as businesses have (quite rightly) been trained to be wary of cooperating with competitors—with one survey suggesting that 60% of businesses had shied away from cooperating with competitors for fear of competition law. Companies are reluctant to cooperate with competitors without guidance from the competition authorities. Myself and many others have been pressing the authorities to provide such guidance both generally and in the case of individual projects. It is in this area that we have seen the most progress in recent years and the majority of this survey focuses on this. Unlike the 2010 Horizontal Guidelines (HGs) that these guidelines replace, the EU’s 2023 HGs1 contain a whole chapter (Chapter 9) on ‘sustainability agreements’. I summarise here: (i) the headline message for business, (ii) what sustainability encompasses in this context, (iii) what the HGs say, (iv) some of their limitations, and (v) how they improve on the draft HGs of 1 March 2022. The HGs set out how business can work together to fight climate change, put their industry on a more sustainable basis, and achieve broader social sustainability objectives. Whilst not perfect (and the Dutch and UK draft guidelines go further), they provide a clear framework by which business can enter into agreements on such things as green production, phasing out the use of dirty fuels, and sourcing inputs on a more sustainable basis. It is an oversimplification, but the Commission’s message is: ‘antitrust rules do not stand in the way of agreements between competitors that pursue a sustainability objective’—we hope that business heeds this message. The guidelines do not (and could not) provide answers to all the questions business will have on what they can, and cannot, do in this area. However, the Commission sets out an ‘open door’ principle emphasising that it is willing to provide ‘informal guidance’ on individual sustainability agreements. This is welcome and I call on the business community to take real life concerns and examples to the Commission (or other relevant competition authorities) with a view to developing the guidance and increasing certainty in this evolving area. Businesses should ensure that agreements are not only focussed on sustainability but that this can also be seen clearly to be the case. That said, whilst there may be cases where detailed scientific evidence is needed to substantiate sustainability claims I very much hopes that, in most cases, this will not be necessary and that the authorities take a flexible and proportionate approach to the evidence needed (including accepting qualitative evidence). The HGs cover more than environmental sustainability (although in practice this is at their heart). As the Commission’s FAQ paper explains sustainability agreements ‘typically pursue goals aimed at economic, environmental and social development such as combatting climate change, reducing pollution, limiting the exploitation of natural resources, upholding human rights, ensuring a living income, protecting animal welfare and reducing food waste’ (see also paras 516–521 of the HGs). First, the HGs set out explicitly that competition law only applies to an agreement if it affects a parameter of competition (price, quality, etc.) and gives examples of sustainability agreements that fall outside Article 101(1) completely (paras 527–555). Second (and as part of the above), it sets out a ‘safe harbour’ for agreements that set a minimum sustainability standard and which meet six cumulative conditions. Importantly, it also makes clear that there is no presumption that an agreement falling outside the safe harbour is problematic (on the facts it may still fall outside 101(1) and, even if it does on the face of it restrict competition, it may still benefit from an exemption under Article 101(3)) (paras 537–555). Third, it provides guidance on how sustainability agreements should be assessed for compliance with each of the four cumulative conditions for an exemption under Article 101(3): relevant benefits, indispensability, fair share for consumers, and no elimination of competition. This is a detailed and complex section (paras 556–596) but we highlight just a few points here2: Sustainability agreements may generate traditional benefits, termed ‘individual use benefits’, such as improvements in product quality or variety or price reductions (paras 571–574). They may also give rise to ‘individual non-use benefits’: those where the consumer values the sustainable qualities of the product even though these do not improve the objective quality or reduce the price (for example, because the consumer values the fact that production of the product has less negative impact on others, e.g. a fuel that pollutes less, a product that did not give rise to deforestation or habitat loss, or where living wages were paid to those who produced it) (paras 575–581); The third category of benefits is ‘collective benefits’ where ‘the sustainability impact from individual consumption accrues not necessarily to the consuming individual but to a larger group’. The most obvious example is an agreement which reduces the emission of greenhouse gases or ‘GHGs’ (paras 582–589). Welcome as the HGs are, there are still some serious limitations to them, and they are less ambitious than the draft UK and Dutch guidelines3 (note the Dutch have indicated that they will now bring their draft Guidelines into line with the HGs). Central to this is the Commission’s view that the consumers buying a product (so-called ‘in market’ consumers) must be no worse off as a result of the agreement (the ‘full compensation’ principle) so that the ‘overall effect on consumers in the relevant market is at least neutral’ (para 569). That said the HGs set out various ideas that mitigate the potential negative impact of this stance: First, where the consumers in the relevant market ‘substantially overlap with, or form part of, the group outside the relevant market’ collective benefits accruing to the latter can be taken into account (paras 583–585). Second, it may be possible to add to these the individual use and non-use value benefits accruing to consumers in the relevant market; ‘indirect, non-use value benefits accrue to consumers within the relevant market vi

• openalex https://doi.org/10.1093/jeclap/lpad032first seen 2026-08-02 18:43:49