Dutch Competition Authority continues to provide more room for sustainability agreements

On 4 October 2023, the Dutch Competition Authority (ACM) published a new policy rule on the oversight of sustainability agreements. The policy rule is brought in line with the recently revised horizontal guidelines of the European Commission and replaces ACM’s previous draft guidelines on sustainability agreements.

Under its previous draft guidelines on sustainability agreements, the ACM took the position that environmental damage agreements, relating to efficiently decreasing negative external effects on the environment, can benefit from the cartel prohibition exemption of article 101(3) TFEU (and its Dutch equivalent) if the total benefits for society outweigh the harms for the consumers negatively affected. This provided more room for competitors to cooperate in ESG initiatives that add to reaching climate goals. 

Despite ACM’s active lobbying efforts, this position was not followed by the European Commission in its recently revised horizontal guidelines. Although the horizontal guidelines do state that collective benefits can be weighed, this can only be done where two markets are related and provided that the group of consumers that is affected by the restriction and the group that benefits from the efficiencies is substantially the same. 

In its now published policy rule the ACM follows the European Commission’s approach to sustainability agreements, but with an important exemption to provide businesses with more opportunities to collaborate. The ACM has committed that it will not take enforcement action in two situations:

1. Businesses can agree to comply with a binding national or European sustainability rule that is not (or cannot be) fully implemented or enforced – for example, in the area of waste recycling; and
2. Businesses can agree to efficiently achieve environmental goals, such as reduction of CO2 emissions, if the consumer receives an appreciable and objective part of the benefits.

Although the ACM’s more lenient position is welcome, it may take some guts for businesses to rely on this policy rule if their collaboration may also have effects outside the Netherlands, as other competition authorities may not follow suit. Having said that, this should not discourage businesses to explore all possibilities, also in collaboration with competitors, when it comes to ESG initiatives. A lot is (still) possible. 

Businesses are actively invited to seek guidance, both from the European Commission and the ACM.

If you need assistance with the Dutch Competition Authority, or wish to discuss sustainability agreements with us, please contact the team.