With its Green New Deal, the European Commission is pursuing the goal of establishing a climate-neutral, sustainable economy in the EU by 2050. The discussion on this has also reached antitrust and competition law and essentially revolves around two core issues.
Ban on cartels
So far, there is no certainty to what extent agreements between companies which, for example, serve to protect the environment or reduce CO2 emissions, can be reconciled with the ban on cartels. In fact there is no doubt that agreements intended to implement non-profit or public interest objectives can also affect competition.
If, for example, companies want to agree throughout their industry that only a fixed amount of CO2 may be caused for manufacturing a certain product unit, there is a risk that this agreement infringes the ban on cartels. Similarly, establishing a circular economy system, which also requires industry-wide arrangements, can also be problematic. In addition, more and more research and development cooperation projects are likewise aimed at making products more climate-friendly. The usual antitrust requirements also apply here.
The underlying question of the role of public interest objectives (such as sustainability) within the framework of the ban on cartels is by no means new. In its Horizontal Guidelines, the European Commission has already defined the conditions under which cooperative ventures intended to implement technical standards or quality marks that serve public interest objectives should be exempt from the application of the ban on cartels. Although it is not explicitly stated that the sustainable production of goods is a recognised public interest aspect, an assessment to this effect is certainly conceivable. It is also to be expected that a clarification will be provided in a new version of the Horizontal Guidelines.
In short: Against the background of the discussions at the political level, competition authorities can (and will) no longer close their minds to such arguments, which could lead to facilitation of cooperation between competitors under sustainability aspects.
The question of how sustainability aspects should be treated within the framework of merger control has not yet been conclusively clarified either.
Can companies (in future) argue with environmental arguments in merger control proceedings and convince the competition authority to grant clearance, even if the project is viewed critically from a competition point of view? Or can mergers even be prohibited on the grounds that the resulting company is expected to have harmful effects on the climate?
In view of this, it remains to be seen to what extent such arguments will affect future decisions. It appears obvious, however, that they will be gaining in importance in merger control proceedings as well.
The competition authorities of several European countries have already addressed these issues in publications and have thus put the topic on their own agendas (e.g. Germany, France, Greece and the Netherlands). It therefore cannot be ruled out that companies will in future also discuss with competition authorities what is meant by sustainability. The case practice of the coming years can be eagerly awaited. Clear assessment standards will probably only develop as the number of such cases increases. In any case, competition authorities are already free to take public interest aspects into account in their decisions today.
For further questions please contact:
Markus Brösamle Dr. Lucas Gasser