Draft Guidelines on agreements allowing to achieving sustainable objectives of the Dutch competition authority

1. On 9 July 2020, the Dutch Authority for Consumers and Markets (Autoriteit Consument & Markt) released their draft Guidelines “Sustainability agreements” for a public consultation.  As per this draft, the Dutch national competition authority aims at setting the criteria to authorize anticompetitive agreements which allow the achievement of sustainable objectives such as reducing carbon emissions.

2. The draft Guidelines “Sustainability agreements” are based on the classic mechanism of exemption from the prohibition of anti-competitive agreements provided for by Section 6(3) of the Dutch Competition Act (Mededingingswet) and Article 101(3) of the Treaty on the Functioning of the European Union (hereafter the “TFEU”).  Pursuant to this exemption mechanism, when an agreement restricts competition in one or more relevant markets but generates advantages beyond its negative effects on the market, the agreement escapes the prohibition of anticompetitive agreements and is deemed to be lawful under competition law.

3. The draft Guidelines “Sustainability agreements” is intended to set new criteria for the exemption of anticompetitive agreements that achieve sustainability goals.  The novelty is that the balance of the agreements’ benefits vs. negative effects would no longer be limited to the market.  It would compare the advantages of the agreements for the society as a whole against the agreements’ disadvantages on the relevant market(s) and would allow a validation of the agreements when the former exceed the latter.  This expansion of the scope of the balance could result in an increase in the number of agreements eligible for the exemption.

4. Nevertheless, the effect of these draft Guidelines (if adopted) will remain limited until the European Commission issues an equivalent provision.  By virtue of Articles 3(1), 5 and 6 of Council Regulation (CE) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty in fine, a Member State’s national competition authority or national court shall prohibit an agreement which falls within the scope of application of Article 101 TFEU, restricts competition in violation of Article 101(1) TFEU and cannot benefit any of the EU block exemption regulations or the individual exemption of Article 101(3) TFEU although this agreement conforms to the concerned Member State’ national competition provisions.

5. In a release of 9 July 2020, the European Commission mentioned that it takes good note of the draft Guidelines “Sustainability agreements” of the Dutch Authority for Consumers and Markets.  It also states that it is currently working on an approach similar to the one developed in the Dutch draft Guidelines as part of its review of the two Horizontal Block Exemption Regulations, i.e. Commission Regulation (EU) No 1217/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements and Commission Regulation (EU) No 1218/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialization agreements, and the Commission Communication Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements.

6. The same day, the French Competition Authority (Autorité de la concurrence) made public its interest for the new approach of the draft Guidelines “Sustainability agreements” of the Dutch Authority for Consumers and Markets which the French authority said that it would feed their reflection. If a consensus eventually emerges within the Member States’ national competition authorities, it is a safe to consider that the European Commission would move quickly on this issue.  As such, the support of the French Competition Authority is important given their influence within the European Union.