Europe

Horizontal Agreements in the Environmental Context: In 2020, the OECD issued a paper that discusses whether competition policy should be influenced by sustainability. The 2020 paper follows the OECD's 2010 paper, which considers, from national perspectives, the interaction between horizontal agreements with environmental goals and competition law policies.

The 2020 paper also analyses the substantive application of competition law to sustainability issues by exploring the extent to which competition law can be interpreted in a way that fosters or limits sustainability initiatives. In addition, Australia and New Zealand, Germany, Greece, Lithuania and the Netherlands have submitted contributions to this discussion. The OECD's 2020 paper provides a thorough introduction to the state of play of sustainability in the context of competition law. It encourages agencies to be clear about their objectives and priorities in order to provide clarity on how sustainability fits into competition law, with formal and informal guidance emphasised. It also examines approval procedures, sandboxing, admissible evidence, capacity, fining, and international co-operation as possible measures to further sustainable goals. In December 2021, the OECD roundtable assessed these issues again and published a follow-up paper specifically on environmental considerations in competition enforcement. Additionally, the 2022 OECD Competition Open Day addressed, inter alia, Green Innovation. In December 2022, OECD Global Forum on Competition will discuss the goals of competition policy including the question on whether "competition law and policy needs to adapt as a policy instrument to better accommodate socio-economic trends such as the rising importance of sustainability".

Current position of the European Commission: Sustainable goals are high on the agenda for the European Commission ("EC"), as demonstrated by the Green Deal initiative – a roadmap for making the EU's economy sustainable by turning climate and environmental challenges into opportunities across all policy areas.

Guidelines on cooperations in the agri-food sector: In December 2023, the EC published guidelines for sustainability agreements for agriculture producers to clarify the application of the Article 210a exemption contained in Regulation 1308/2013. Article 210a exempts restrictions of competition in both horizontal and vertical agreements in the agriculture sector that are indispensable to achieving sustainability standards higher than EU or national mandatory standards. The exemption complements other exemptions that may be available to sustainability agreements including under the Horizontal Cooperation Guidelines, the Vertical Guidelines (see below) or more broadly under the exemption laid down in Article 101(3) TFEU. They describe in detail conditions under which agreements between actors in the agricultural and food chains can benefit from the exemption to Article 101 (1) TFEU's prohibition of anti-competitive agreements. The draft guidelines discuss each aspect of the exemption. These include the following: (i) scope of the exclusion specifying that the exemption applies to agreements including at least one agricultural producer as a party; (ii) eligible sustainability objectives and standards; (iii) the test to identify indispensable restrictions to competition; and (iv) the scope for the EC's and national competition authorities' right to stop or require amendments to the sustainability agreement. Read more in our alert here.

Guidelines on sustainability cooperation agreements between competitors: In  June 2023, the EC revised Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements ("Horizontal Guidelines"), which provide guidance on how to self-assess sustainability agreements under EU competition law.

The Horizontal Guidelines use a broad definition of "sustainability" so as to include social objectives (e.g. labour and human rights), as well as environmental initiatives. The EC also takes a broad view of the "benefits" that are relevant to the competitive analysis, including: (i) individual use value (e.g. improved product quality or variety); (ii) individual non-use value (where the consumers' use experience with the product is not directly improved, but consumers value the impact of their sustainable consumption on others); and (iii) collective benefits (where, irrespective of the consumers' individual appreciation of the product, objective benefits accrue to a larger group of which the consumer is part). The Horizontal Guidelines provide examples of four type of agreements that are unlikely to raise competition concerns. These examples are merely illustrative and non-exhaustive: (i) agreements that aim to comply with legally binding international agreements whether they have been implemented by national law; (ii) agreements that do not concern the economic activity of undertakings but their internal corporate conduct; (iii) agreements to set up a database containing general information about suppliers that have (un) sustainable values chains; and (iv) agreements between competitors relating to the organisation of industry-wide awareness campaigns raising customers ‘awareness of the environmental impact or other negative externalities of their consumption.

The Horizontal Guidelines also introduce a "soft safe harbour" for sustainability standards. A sustainability standardisation agreement is unlikely to raise concerns where it secures transparency, open and non-discriminatory access, voluntary participation, freedom to adopt a higher standard and does not involve exchange of commercially sensitive information. At the same time, at least one of the following conditions should be satisfied: (i) the sustainability standard must not lead to a "significant" increase in price or "significant" reduction in quality of the products; or (ii) combined market share of the participants must not exceed 20% on any relevant market. Sustainability standardisation agreements will raise competition concerns if they restrict competition by object or lead to "appreciable actual or likely negative effects on competition".

The Horizontal Guidelines encourage companies to rely on the EC's Informal Guidance to provide clarity on "novel or unresolved questions on individual sustainability agreements".

Sustainability considerations in vertical agreements: In May 2022, the EC adopted the guidelines on vertical restraints ("Vertical Guidelines"), which provide guidance on how to self-assess vertical agreements under EU competition law. When assessing the qualitative criteria for distributors to be part of a selective distribution system, the Vertical Guidelines specify that sustainable objectives may be taken into account, including: (i) climate change; (ii) environmental protection; and (iii) limiting the use of natural resources.  Finally, the Vertical Guidelines make reference to the fact that non-compete clauses of a longer duration may be justified in order to offset the investment risk in a project aiming to produce sustainable products or services.

Sustainability considerations in merger control: In October 2023, the European Commission published a paper on how the European Commission takes into account sustainability considerations in its merger control review and provide examples with references to its decisional practice. It includes insights on how the EC views sustainability factors in market definition, competitive assessment, and remedies.

Sustainability considerations when defining markets: In February 2024, the EC published the revised Market Definition Notice, marking the first update since its initial adoption in 1997. In contrast to the Market Definition Notice from 1997 which treated price as the key competitive parameter for market definition, the revised notice codifies the EC's more recent thinking around key competitive parameters. This now also includes the product's quality in various aspects including its sustainability.

White & Case Contacts:

James Killick, Partner, Brussels

Dr. Tilman Kuhn, Partner, Düsseldorf

Dr. Michael Engel, Partner, London

Nina Frie, Professional Support Lawyer, Brussels

Antitrust Rules: The Austrian Cartel and Competition Law Amendment Act 2021 ("KaWeRÄG 2021") includes the aim of increasing sustainability initiatives. Austria was amongst the first countries to formally address sustainability considerations in its legislation. In particular, the KaWeRÄG 2021 introduces the so called "sustainability exception" (Section 2, paragraph 1 KaWeRÄG 2021, reflecting Article 101(3) TFEU): "Consumers shall also be considered to be allowed a fair share of the resulting benefit if the improvement of the production or distribution of goods or the promotion of technical or economic progress contributes to an ecologically sustainable or climate-neutral economy".

Sustainability Cooperation Guidelines: In September 2022, the Federal Competition Authority ("BWB") published its sustainability cooperation guidelines. The guidelines aim to provide more legal certainty for companies that envisage entering into cooperations and cover, inter alia, guidance on (i) the scope for application of the sustainability exception, (ii) the parameters companies have to demonstrate and prove with regard to the efficiencies brought about by the cooperation and the indispensability of the restriction of competition, and (iii) the relevance to demonstrate that the efficiencies brought about are substantial (including in certain cases to quantify qualitative efficiencies).

The BWB acknowledges that it is currently a challenge to provide practical examples regarding the various aspects of the newly incorporated sustainability exception and plans to make the guidelines a "living document" that will be updated in the future. The BWB explicitly encourages companies to reach out early on to discuss potential competition law implications of an envisaged initiative.

White & Case Contacts:

Dr. Tilman Kuhn, Partner, Düsseldorf

David Marder, Associate, Düsseldorf

General position of the Competition Authority: The Czech Competition Authority (the "CCA") has not yet issued any formal guidelines on sustainability considerations. The CCA has been taking a rather conservative approach in addressing the issue of how a positive environmental impact may act as a counterweight to potential anti-competitive effects of agreements between competitors. However, the CCA stated in its 2022 Annual Report that environmental and sustainability policy considerations in antitrust impact assessments are very topical and that competition authorities can undoubtedly contribute to sustainability and climate protection through their policies. Furthermore, the Chairman of the CCA highlighted in a 2022 press release three key approaches towards sustainability and environmentally friendly solutions:

1. The CCA intends to severely punish prohibited anticompetitive practices aimed at slowing down or frustrating the progress towards sustainable and environmentally friendly solutions;
2. The CCA intends to strongly punish prohibited anticompetitive agreements that are only pretending to be justified by bringing benefits to sustainability and the environment – so-called "greenwashing" practices – and considers such agreements to be hardcore cartels; and
3. The CCA intends to maintain a reserved approach towards markets with natural consumer demand for green products and services since undertakings should be motivated to deliver sustainable and environmentally friendly solutions in order to get more customers and increase profits on such markets, which is why there is no need to take a more lenient approach to agreements that increase sustainability and distort competition.

Czech antitrust legislation does not formally account for sustainability considerations: There is a general trend across various economy sectors in the Czech Republic to recognise sustainability benefits; nevertheless, Czech antitrust legislation (i.e. the Act on the Protection of Competition) has not yet been amended to take into account sustainability considerations to authorise sustainability cooperation agreements, which may otherwise fall within the general prohibition on anti-competitive practices between competitors. The legislation is not expected to be amended in this regard any time soon. 

In line with EU law, the Act on the Protection of Competition allows for exemptions from the ban on anticompetitive agreements when certain efficiencies and benefits are met. As can be seen from the decision-making practice to date (below), the CCA accepts sustainability considerations or contributions to environmental objectives as suitable efficiencies. However, the CCA maintains a reserved view towards such efficiencies, meaning that every efficiency justification is carefully scrutinised.

Sustainability considerations in the CCA's decision-making practice: Notwithstanding the CCA's conservative approach on sustainability considerations, White & Case has been successfully advising four Czech banks on their contemplated ATM pooling arrangement, which brought important efficiencies and benefits for consumers, including reducing the banks' carbon footprint, but at the same time combined direct competitors with significant market shares. This was one of very few projects of horizontal cooperation where the CCA accepted that it is justified by sustainability considerations. The banks have subsequently agreed to extend the cooperation also to ATM deposits. The CCA perceives the project as one of only a handful cases of cooperation where greater weight was given to the sustainability benefits than to the risk of raising antitrust concerns.

White & Case Contacts:

Ivo Janda, Partner, Prague

Magda Olyšarová, Counsel, Prague

In its 2022 Competition Council's report, the Danish Competition and Consumer Authority ("DCCA") highlights sustainability and climate change mitigation as a focus area. The report indicates that the DCCA views sustainability as a possible (and increasingly so) parameter of competition.

In its assessment of SEAS-NVE's acquisition of the Danish power company Ørsted, the DCCA considered sustainability arguments in its market definition of retail sales of power and natural gas. The DCCA concluded that consumers viewed power and natural gas sold by different suppliers as differentiated products; for example, one supplier positioned itself as a particularly green brand. (Competition Council's decision of 24 June 2020, "SEAS-NVE's køb af Ørsted selskaber")

In September 2022, the DCCA published guidelines to help public making more "green purchases" through public procurements. This might contribute to increasing the competitive relevance of sustainability.

Sustainability agreements were flagged as a relevant topic for competition and consumer policy during Finland’s Presidency of the Council of the EU in 2019. The Finnish Competition Authority has not issued any specific guidance yet.

The competition authorities of the Nordic countries published a joint report in 2010. The report underlines the importance of competition in achieving environmental goals in a cost-effective way, and advocates for market-based approaches, such as pricing emissions in environmental policy. Exemptions for proportionate and clear environmental benefits are possible.

White & Case Contact:

Marika Harjula, Counsel, Brussels

Working Paper: The Autorité de la Concurrence ("ADLC") contributed in 2020 to a working paper examining the role and tools of competition law in the face of climate change. This paper acknowledges that certain concerted practices aimed at sustainability goals may come into conflict with competition law. The paper indicates that the ADLC is keen to engage in EU-wide and international discussions, with a view to discovering the best way to move forward. 

Priority issue: The ADLC has released its 2024-2025 roadmap, emphasising once more its dedication to sustainable development. Building on the information provided in its previous roadmap, the ADLC emphasises its work on implementing a procedural framework for undertakings seeking guidance on competition rules and sustainability as well as its targeted sector-specific inquiries (see further details below).

Sector-specific inquiries: In February 2024, the ADLC started ex-officio investigations into the product rating system sectors aiming to provide sustainability related information on products and services offered to consumers. The rating is present in a wide range of sectors including, for example, agri-food, cosmetics, textiles, toys or household appliances. A growing number of consumers are keen to obtain more information on sustainability-related characteristics before or at the time of purchase. The rating systems therefore play an increasingly important role in the competitive landscape in a given sector. The ADLC will examine (i) the role of products rating systems as a parameter of competition as the ratings are likely to influence purchasing decisions, (ii)  whether the systems encourage companies to innovate in creating products or services that are more virtuous in terms of sustainability, (iii) whether practices of players involved in the operation of the systems could have an impact on competition, and (iv) the consequences for competition of the multiplication and coexistence of rating systems within the same sector.

In March 2023, the ADLC launched a public consultation as part of its inquiry into the land passenger transport sector. In November 2023, the ADLC published its opinion on the competitive functioning in this sector. The ADLC notes that sustainable development is one of the objectives of the policy to open up land passenger transport to competition. It points out that intermodality (i.e. the combination of several transportation methods in the itinerary of travelers) creates alternatives to individual care use and is one aspect of the link between sustainable development and competition policy. In its analysis, the ALDC endeavoured to include intermodality, an essential passenger need that is now systematically taken into account in public transport policies and the strategies of sector players, in the competitive functioning of the sector.

In February 2023, the ADLC initiated an inquiry specific to the charging infrastructure for the electric vehicles sector. The purpose is to examine the competitive dynamics within the market for this environmentally friendly mode of transportation. This inquiry offers a platform for discussing how the competition landscape in this sector can be assessed in light of sustainable development principles.

Guidance on receiving an informal "comfort letter" on sustainable cooperation agreements: In December 2023, the ADLC published a call for input on its draft communication  guiding companies with respect to receiving informal guidance from General Case Handler of ADLC on whether their sustainable agreements are compliant with competition law. The draft specifies the conditions under which companies may request informal guidance, the procedure to follow, as well as the scope of the guidance provided. The final framework document is expected to be published in 2024.

New legislation: A new law combating climate change and strengthening resilience to its effects was introduced in August 2021. The ADLC may take this new legislation into consideration in its future competition law assessments.

Notice on fines: The ADLC published in July 2021 a revised procedural notice on the method for determining the value of fines imposed on companies for anti-competitive practices. The non-exclusive list of factors, which may be taken into account when assessing the seriousness of such practices, now explicitly refers to the environment.

Decisional practice: The ADLC already takes sustainable development into consideration in its decisional practice. For instance, in its decision 17-D-20, the ADLC imposed sanctions in a cartel case involving a non-competition agreement relating to environmental communication. Several floor-covering manufacturers signed a charter barring each company from advertising the individual environmental performance of their products. Manufacturers were permitted only to communicate on the environmental performance of their product through joint data sheets produced by a trade association. Such agreement eliminated "competitive marketing practices based on environmental characteristics", leading to the adoption of a consistent marketing approach to prevent "reckless green marketing".

White & Case Contacts:

Jérémie Marthan, Partner, Paris

Camille Coulon, Associate, Paris

General position of the Competition Authority: The Bundeskartellamt ("BKartA") published a note for the OECD Paper on Sustainability and Competition Law, acknowledging that there may be times when competition law and sustainability come into conflict, although this should not generally be the case. The BKartA stated that "it is primarily the task of the democratically elected lawmaker to strike a balance between the opposing interests". The president of the BKartA, Andreas Mundt, positioned himself quite clearly publicly in 2021 – he was "not very happy" about the debate to implement more public interest considerations (including sustainability) in competition law, because public and political interests may change quite quickly. He reiterated his concerns during an interview in May 2023, emphasising that competition law becomes "very politicised", where sustainability is interpreted too broadly, i.e., not only relating to environmental issues, but also broader topics like social and governance issues. In the published BKartA annual reports of 2021/2022 and 2022/2023, president Mundt emphasised, however, that antitrust law did not stand in the way of cooperations to achieve sustainability goals – sustainability and competition law rather go "hand in hand".

The German Federal Ministry for Economic Affairs and Climate Action announced in September 2022 that a 12th amendment of the German Act against Restraints of Competition ("GWB") shall be expected in this legislative period that will focus on sustainability initiatives. The Ministry conducted a public consultation in that regard which ended in December 2023 and also commissioned a study on Competition and Sustainability in Germany and the EU, which was published in March 2023. The study assesses how antitrust law affects achieving sustainability goals and what options for developments there are. In November 2023, the Ministry also highlighted its role in the adoption of the European Commission's new horizontal guidelines. Repeatedly pointing out the problem, the Ministry reaffirmed its commitment to greater legal certainty and appreciation of sustainability cooperations and the increased consideration of "out of market efficiencies". In March 2024, representatives of the Ministry announced a first draft of the revised legislation with specific proposals regarding sustainability cooperations by approximately the end of April 2024.

Public interest objectives in competition law: In the BKartA's background paper on public interest objectives in competition law, the regulator acknowledged the work completed by other competition authorities and recognised that "the issue of a more sustainable use of the resources available to us is moving to the centre of the debate on competition policy". The contribution of the Dutch competition authority was brought into particular focus in the BKartA's background paper.

Assessment of sustainability considerations in cooperation agreements and merger control: The BKartA has so far largely given only specific individual guidance to businesses related to cooperation between competitors, rather than issuing more general overarching guidance. The 2021/2022 annual report provided some limited guidance regarding the factors that the BKartA has taken into account in its previous decisions, such as the question whether the sustainability criteria have been developed in an open process, whether there is sufficient transparency for consumers, or whether access to the cooperation is non-discriminatory. In the most recent 2022/2023 report, the BKartA briefly summarises key points it pays attention to when assessing sustainability initiatives. The BKartA focuses on inter alia: (i) the severity of the competition restriction; (ii) the initiatives' effects on sales prices; (iii) if the access to the initiative is non-discriminatory; (iv) if the sustainability criteria were developed in an open process; and (v) if the initiative is sufficiently transparent for consumers ("labelling").

In 2019, the German Federal Minister of Economic Affairs overruled the BKartA's prohibition of a joint venture between Miba AG and Zollern GmbH & Co KG concerning the market of plain bearings by way of a ministerial authorisation. The minister found that public interests, such as safeguarding know-how and innovation, outweighed competitive concerns, and that the deal contributed to energy transition and thus the achievement of environmental policy goals. In January 2022, the BKartA assessed an initiative to introduce fair wages in the banana sector and, separately, plans to expand the animal welfare initiative, "Initiative Tierwohl", finding that these were compatible with competition law, in particular their proposed pricing and financing models. At that time, the BKartA encouraged "Initiative Tierwohl" to gradually introduce more competitive elements going forward, upon concern by the BKartA, the initiative indeed decided in May 2023 to replace the standard premium with a recommended premium. The BKartA emphasised that the initiative was then well-established and thus "a standard premium for animal welfare does not appear indispensable for implementing the initiative and observing animal welfare criteria". In respect of the banana sector initiative, there are plans to agree to voluntary common standards and strategic goals in order to introduce responsible procurement practices and develop processes to monitor transparent wages. Importantly, no competitively sensitive information will be exchanged, nor are compulsory minimum prices or surcharges to be introduced. In March 2022, the BKartA assessed and did not have any material competition concerns related to an initiative to increase animal welfare in the milk sector (the "QM+ programme"). The initiative aims to introduce a label for products that meet certain animal welfare criteria and finance the additional costs via an "animal welfare surcharge" to be paid by food retailers. Participating in QM+ programme is voluntary.

By contrast, in January 2022, the BKartA found that another sustainability initiative in the milk sector amounted to a price fixing agreement that did not ultimately pursue sustainability goals and infringed competition law.

In June 2023, the BKartA did not see any reason for detailed examination of the German Initiative on Sustainable Cocoa ("Kakaoforum") – a joint initiative of public authorities, companies of the cocoa and chocolate industry, retail grocery companies, and NGOs. One of the initiative's main objectives is to help cocoa farmers in Ghana and Côte d'Ivoire earn living wages by encouraging its members to voluntarily commit to individualised minimum prices, quotas, and premium systems to achieve better farm gate prices for the producers. The voluntary nature of the commitment (i.e. lack of a sanctioning mechanism) was particularly important for the BKartA. The BKartA also took into account that members' commitments were published on an anonymised basis and that the producers' shares account for only a small percentage in price formation along the value chain.

White & Case Contacts:

Dr. Tilman Kuhn, Partner, Düsseldorf

David Marder, Associate, Düsseldorf

Technical Report on competition and sustainability: In January 2021, the Hellenic Competition Commission ("HCC") co-authored a technical report on competition and sustainability with the Dutch competition authority. The report tackles the main concepts of welfare economics and relevant externalities and seeks to quantify sustainability as part of the total economic value.

Authorisation of agreements based on public interests: The article 37A of law 3959/2011 provides that the President of the HCC may issue a no-action letter against a horizontal or vertical agreement for violation of article 1 of law 3959/2011 and Article 101 TFEU or against a practice for violation of article 2 of law 3959/2011 and Article 102 TFEU, on grounds of public interest, such as sustainability goals. No-action letters related to sustainability goals are now issued through the sandbox process (see under Sustainability Sandbox below), but do not bind the HCC or the courts.

Draft Staff Discussion paper on sustainability issues and competition law: In September 2020, the HCC published a Draft Staff Discussion Paper, in which it analyses convergence areas and conflicts between sustainable development and competition law in all its aspects. The paper highlights the parameters of sustainable development that can be promoted: (i) without proceeding with any changes with regard to competition law enforcement; (ii) by following a smooth adaptation of the notion of sustainable development followed by specific suggestions; or (iii) by adopting an innovative approach or even an adjustment of the established theories of harm.

Sector Inquiry into waste management and recycling: In 2021, the HCC conducted a sector inquiry into waste management and recycling, which led the authority to invite comments from the public. A final report was expected to be published in December 2022 but has not been published yet. One of the goals of this sector inquiry is to assess the extent to which specific practices can be justified by effectiveness and public interest objectives, such as sustainable development, and how this can be justified on the basis of different instruments of competition law.

Sustainability Sandbox: In October 2022, the HCC created a regulatory sandbox, in order to encourage and allow companies to undertake sustainability initiatives without the fear of breaching competition rules. The purpose of the sandbox is to attract innovative business solutions that will enhance sustainability whilst eliminating practices that could harm competition (e.g. "greenwashing" practices). The sandbox is a supervised environment where the HCC, following an application and the evaluation of a business proposal, assesses and approves sustainability initiates from the perspective of both competition law and sustainable development, "with the aim to strengthen legal certainty for undertakings and reduce the regulatory risk for investments in line with the broader public interest objectives for sustainable development". In its Decision No. 789/2022, the HCC sets out the criteria and conditions for the issuance of the no-action letter under article 37A of Law 3959/2011 and determines other relevant matters relating to the implementation of this provision. We are not aware of any submitted application to the sustainability sandbox. In November 2023, the HCC re-announced the nomination process for the position of the Sustainability Advocate. Among others, the Sustainability Advocate will contribute to the academic support, as well as to the education and training of the HCC staff on sustainable development and competition issues. The sustainability advocate will also support the submission and processing of proposals for sustainable business initiatives under the sandbox.

Guidelines on sustainability agreements on the horizon? A few years ago, the HCC announced that it envisages issuing guidelines providing the conditions under which the private sector may proceed with collaborations in order to promote sustainability. It is unclear if and when those guidelines will be issued.

White & Case Contacts:

Dr. Assimakis Komninos, Partner, Brussels

Iakovos Sarmas, Associate, Brussels

Marios Gavriiloglou, Associate, Brussels

In its focus plan for 2023 to 2025, the Icelandic Competition Authority ("ICA") emphasised an enforcement focus on the forces of competition to accelerate actions to reduce global warming and increase sustainability. The ICA noted that competition can be a driving force for sustainable development and that it, in particular, would monitor indications of competition restraints for this development.

In its updated focus plan for 2024 to 2026, the ICA did not repeat sustainability as a focus area. However, the ICA held that the energy industry is one of its main priorities, considering the energy transition and other changes in the field to reduce global warming. The ICA further noted that it is important that it has discretion to supervise the energy industry.

The competition authorities of the Nordic countries published a joint report in 2010. The report underlines the importance of competition in achieving environmental goals in a cost-effective way, and advocates for market-based approaches, such as pricing emissions in environmental policy. Exemptions for proportionate and clear environmental benefits are possible.

Italian Competition Authority's focus on greenwashing: On 31 March 2022, the Italian Competition Authority ("ICA") published its Annual Report for 2021 where it found that when analysing the relationship between competition and sustainability, greater sensibilisation of consumers and businesses with regard to "green washing" is needed. In fact, the Annual Report for 2021 is also the first time that the ICA relates the concept of greenwashing with unfair competition.

The ICA Annual Report for 2021 also referred to the fact that the ICA exercised its power of moral suasion with regard to an airline, the advertising campaign of which used claims such as "zero-carbon flights […] offsetting emissions from the fuel used in all of our flights" and "travel responsibly – fly offsetting CO2 emissions". Consequently, the airline changed the text of some pages of its website, thereby describing its commitment to the environment more correctly.

In its latest Annual Report, published on 31 March 2023 and covering 2022 activities, the ICA further highlighted its efforts with regard to the greenwashing. It reported its participation to OECD's Roundtables on Consumer Policy where it shared its experience in countering deceptive environmental claims.

Decisional practice with respect to the greenwashing: The ICA has been monitoring commercial communications concerning green claims and has fined companies for misleading advertising messages linked to sustainability. Importantly, in November 2021, an Italian court issued the first precautionary order in relation to greenwashing. The Tribunale di Gorizia accepted the appeal lodged against a company which markets a microfiber with a similar appearance to chamois used in the furniture, fashion and automotive sectors, and acknowledged, with reference to Art. 12 of the Codice di autodisciplina della comunicazione commerciale that the expressions "natural choice", "friend of the environment", "the first and only microfiber that guarantees eco-sustainability throughout the production cycle", and "ecological microfiber" amounted to misleading advertising.

In July 2022, the ICA fined Mytaxi Italia S.r.l. and its intermediary, a company active in softwares for taxi transportation services in Italy. According to the Authority, the company violated Articles 21 and 22(1) and (2) of the Consumer Code by charging customers a "Clean Air Fee" for each taxi ride through their "Free Now" app, without clearly indicating that only a portion of the additional cost would be, in the future and in an uncertain manner, allocated to the claimed environmental improvement initiative. The environmental claim was also misleading, as the "Clear Air Fee" was primarily designed to fund incentives for taxi drivers to purchase electric vehicles rather than compensate for CO2 emissions from taxi rides. For this reason, Mytaxi was imposed a fine of EUR 400,000.

White & Case Contact:

Giuseppe Tantulli, Associate, Brussels

Policy Rule on sustainability agreements: On 4 October 2023, the Autoriteit Consument & Markt ("ACM") published a Policy Rule, replacing previous draft guidelines of ACM on sustainability agreements between businesses.

The Policy Rule follows the approach to sustainability agreements adopted by the European Commission in its Guidelines regarding horizontal cooperation agreements. The ACM will apply the European Commission's guidelines when assessing sustainability agreements. However, the ACM's Policy Rule explains that it will not take enforcement action in the two following situations if all conditions are met:

• Businesses can agree to comply with a binding national or European sustainability rule that is not fully implemented or enforced by a signatory state; and
• Businesses can agree to efficiently achieve environmental goals, such as reduction of CO2 emissions, if a consumer receives an appreciable and objective part of the benefits.

Businesses that have questions about sustainability agreements may contact the ACM.

On the same date the ACM decided that collectors of commercial waste are allowed to collaborate to promote waste-recycling on the basis that this initiative is consistent with a statutory waste-separation obligation applicable to (almost) all businesses that deliver waste. This initiative marks the first time that the ACM has applied the Policy Rule.

Prior to the introduction of the Policy Rule, the ACM had assessed five sustainability initiatives using the draft guidelines on sustainability agreements: the first relating to the joint purchase of electricity from a wind farm by businesses and organisations; the second concerning the agreement of grid operators to the use of a uniform price for CO2 in calculation models for grid investments; the third relating to the collaboration in the storage of CO2 in empty natural-gas fields in the North Sea; the fourth concerning arrangement between soft drink suppliers to discontinue use of plastic handles; and the last one focusing on arrangements of garden centres to curtail use of illegal pesticides. The ACM found that it had no objection to these initiatives, stating that they helped make the relevant sectors more sustainable, whilst not being at odds with competition rules.

Technical Report: The ACM has co-authored a technical report on competition and sustainability with the Greek competition authority. The report tackles the main concepts of welfare economics and relevant externalities and seeks to quantify sustainability as part of the total economic value.

Farmers Guidelines: In September 2022, the ACM published Guidelines regarding collaborations between farmers, which outline different opportunities available to the agricultural sector that are allowed under the competition rules.

ACM's focus on greenwashing: The ACM actively monitors sustainable claims made by companies. For example, in February 2024 the ACM filed a request for enforcement with the German consumer authority asking it to take enforcement actions against Zalando in relation to its sustainability claims and icons displayed next to goods. In March 2024, Booking.com agreed to take the so-called Travel Sustainable program offline. According to the ACM, the claim "Travel Sustainable" can wrongly give the impression that travelling is sustainable. It was also not sufficiently clear which aspects the claim relates to. This could create a distorted picture of the actual sustainability efforts of accommodations. In December 2023, the ACM ordered for the supermarket chain Plus to remove unsubstantiated sustainability claims from its stores and brochures.
 

In 2022, the Norwegian Competition Authority ("NCA") published a strategy plan for 2022 to 2027, including a strategic focus in 2022 to 2025 on sustainability through competition. The NCA noted that whereas cooperation between companies can facilitate sustainability, it can also negatively impact sustainability. Impact on sustainability will be a separate priority criterion for the NCA in selecting cases. In its 2022 annual report, the NCA noted that key industries for sustainability includes offshore wind power and fast charging of electric vehicles. The NCA has also published thematic pages on sustainability to provide guidance, including on how competition can contribute to sustainability, impact of the EU and other international institutions, sustainability and cooperation, sustainability and abuse of dominance, and sustainability and merger control.

The competition authorities of the Nordic countries published a joint report in 2010. The report underlines the importance of competition in achieving environmental goals in a cost-effective way, and advocates for market-based approaches, such as pricing emissions in environmental policy. Exemptions for proportionate and clear environmental benefits are possible.

General Approach of the Polish Competition Authority: No formal guidelines on sustainability have been adopted in Poland to date. The Polish Office of Competition and Consumer Protection (the "UOKiK") has never commented on how sustainability considerations could influence its assessment. Nor has it addressed the issue in its decisional practice.

The UOKiK has initiated several investigations concerning co-operation between waste removal companies. In 2021, it conducted investigation into the waste market on the suspicion of bid rigging. The UOKiK also conducted waste market surveys in 2019 and 2020, when it analysed whether waste collection fees might have increased based on anticompetitive behaviour (see the 2019 and 2020 press releases). The investigations and surveys conducted did not reveal any anticompetitive practices, but the UOKiK recognised the problem of increasing fees for waste collection and formulated some policy recommendations aimed at improving market performance, some of which appear to be driven by environmental considerations. This included more pro-actively supervising the industry, further investment in increasing the potential for managing combustible fractions stored in warehouses, establishing a new packaging waste management system, increasing the scale of industry-financed recycling, as well as introducing measures to separate waste at source and a deposit-return systems.

In 2009, the UOKiK prohibited a horizontal (two-to-one) merger in the national market for battery recycling. The UOKiK dismissed the parties' environmental defence because environmental benefits were not sufficiently established and, in any event, they did not counterweigh the merger's negative effects (see the contribution of Poland to the OECD paper on Horizontal Agreements in the Environmental Context). While the UOKiK's recent decisional practice in merger cases does not explicitly confirm the agency's increasing interest in sustainability goals, some statements indicate that the UOKiK recognised environmental benefits generated by certain transactions. For example, in its 2021 press release relating to the merger clearance decisions concerning the construction of wind farms at the Baltic Sea, the UOKiK commented that: "[t]he use of the Polish maritime zone for energy production is extremely important from the point of view of the interests of Polish consumers and entrepreneurs and contributes to the protection of the environment." (See the press release)

Nonetheless, it does not appear that the ESG objectives will become a criterion used by the UOKiK in the assessment of deals or market conduct in the near future. Notably, in the context of merger control, a recent judgment by the Court of Competition and Consumer Protection confirmed that the UOKiK's merger control reviews must concern exclusively competitive consequences of the transaction and that the UOKiK is not competent to assess the transaction based on non-competition considerations.

In the context of various legislative proposals, the UOKiK has indicated that it views the competitive process as important to promote sustainability and environmental protection goals (see the contribution of Poland to the OECD paper on Horizontal Agreements in the Environmental Context). For instance, the UOKiK opposed the key element of the proposed reform to give a monopoly over waste removal to municipalities. Instead, it has advocated for maintaining private competition in that market. The UOKiK, however, agreed to tighten the rules regarding control over the flow of collected waste and the organisation of the waste treatment system by municipalities in their regions, finding that these proposals were "necessary for achieving the environmental goals and their benefits will outweigh the damage to competition".

The UOKiK has also been actively advocating for better enforcement of the "right to repair", especially among manufacturers of household appliances. Within its jurisdiction related to protection of collective consumer rights, the UOKiK has been particularly active in combating greenwashing practices among undertakings operating in cosmetics, clothing and e-commerce sectors.

White & Case Contact:

Katarzyna Czapracka, Partner, Brussels

Iwo Małobęcki, Associate, Warsaw

Contribution to EU debate: The CNMC has released a response to a European Commission consultation on how competition rules can better support the Green Deal, in which it expressed the view that competition policy can play an active role in promoting sustainability; provided that greater legal certainty and predictability of EU competition law is adopted.

White & Case Contacts:

José Antonio de la Calle, Local Partner, Madrid

Sanna Orkan, Counsel, Madrid

Diego García Adánez, Associate, Brussels

In its 2023 – 2025 work programme, the Swedish Competition Authority ("SCA") mentions sustainable development as a particular strategic focus area for 2021 through 2023. The SCA also notes that sustainability will continue to have a strategic impact on its activity in the coming years. The strategic focus mainly concerns knowledge development and there is no mentioning of sustainability in, for instance, the SCA's enforcement priority policy.

In relation to the focus area, the SCA will specifically study competition in relation to charging infrastructure. Furthermore, the SCA hosted a conference in 2022 on the theme sustainability considerations, (see here for more information).

The SCA will likely follow the approach of the European Commission on sustainability and competition law. In April 2020, the SCA submitted a written opinion in response to the European Commission's Green Deal consultation. The SCA did not reject the view that sustainability can play a role in the assessment of restrictions of competition but indicated that consideration to sustainability should be aligned with the principal aim of competition law, namely, to protect consumer welfare. The SCA held that the European Commission is best suited to provide further guidance on sustainability and competition law.

The competition authorities of the Nordic countries published a joint report in 2010. The report underlines the importance of competition in achieving environmental goals in a cost-effective way, and advocates for market-based approaches, such as pricing emissions in environmental policy. Exemptions for proportionate and clear environmental benefits are possible.

Sustainability considerations in merger control review: Environmental sustainability has been flagged as a relevant customer benefit in the Competition & Markets Authority ("CMA") Merger Assessment Guidelines published in March 2021. In its Draft Annual Plan 2024/25, the CMA noted that it would be a priority to help accelerate the UK's transition to a net zero economy.

Green Agreements Guidance: On 12 October 2023, the CMA published its Green Agreements Guidance, which advises on environmental sustainability agreements ("ESAs") and climate change agreements ("CCAs") between businesses operating at the same level of the supply chain (i.e. horizontal agreements). ESAs are agreements that support environmental sustainability, for example, improving air or water quality or conserving biodiversity and natural habitats. CCAs are a subset of ESAs. They specifically combat climate change and many aim to reduce greenhouse gases emitted from goods and services. Examples include agreements between delivery companies to switch to electric vehicles, or an agreement to pool funds to support carbon capture technologies.

The guidance covers three elements related to the prohibition of anti-competitive agreements (Chapter I Competition Act 1998): (i) ESAs between competitors which are unlikely to be anti-competitive; (ii) ESAs which could be anti-competitive; and (iii) ESAs between competitors which could be exempt. The CMA considers that a more permissive approach to exemption is appropriate in the context of CCAs. The guidance is intended to supplement the Guidance on Horizontal Agreements, published in August 2023. Agreements between parties at different levels of the supply chain (i.e. vertical agreements) are directed towards using the Green Agreements Guidance in addition to the Vertical Agreements Block Exemption Order ("VABEO") guidance.

Sustainability Taskforce: The CMA has launched an in house "Sustainability Taskforce". The taskforce focuses on sustainability issues and carries out the following roles:

• leads engagement with stakeholder and government organisations;
• develops formal guidance related to sustainability (e.g., the taskforce helped develop the Green Agreements Guidance);
• maintains a network of experts to inform the CMA's work going forward; and
• supports the CMA's approach to environmental sustainability (e.g., carrying out research on how green claims impact consumer decision making).

Informal guidance on cooperation agreements: The CMA continues to operate an open-door policy. Businesses wanting to enter into ESAs are encouraged to approach the CMA for informal guidance beforehand. This policy is set out in the Green Agreements Guidance. On 14 December 2023, the CMA published its first response to a request for informal guidance. This related to the Fairtrade Foundation and its new scheme on the sourcing of Fairtrade bananas, coffee and cocoa products by participating UK grocery retailers. The scheme provides longer-term contractual stability to enable producers the opportunity to invest in more environmentally sustainable farming practices, in which they must agree to commit to purchase minimum additional Fairtrade volumes of bananas, coffee and/or cocoa from a pool of Fairtrade producers. The CMA confirmed that this arrangement does not raise competition concerns.

On 19 March 2024, the CMA has published its second informal guidance under its Green Agreements Guidance, giving WWF-UK the green light with respect to a cooperation aiming to help grocery sector to reduce emissions coming from the sector's supply chains. The CMA stated that "it would not expect to take enforcement action in respect of the proposal" and published informal guidance to support similar agreements by other businesses and industries who may want to proceed with similar arrangements.

Greenwashing investigations: In September 2021, the CMA published the Green Claims Code. The Code tackles greenwashing and aims to guide businesses when making environmental claims. 'Green claims' or 'environmental claims' are claims that show how a product, service, brand or business provides a benefit or is less harmful to the environment. Businesses use green claims as a marketing tool in the form of slogans, logos, statements, colours and brand names.

The CMA has launched a number of investigations into products and services marketed as 'eco-friendly' to determine whether customers are being misled. In July 2022, the CMA launched an investigation into environmental claims made by ASOS, Boohoo and George (ASDA) that potentially breach consumer protection law. The CMA is interested in whether broad and vague statements used to sell products create the impression that such products are more sustainable than they actually are. On 27 March 2024, each of the businesses committed to modify the display, description, and promotion of their green credentials to make sure that their green claims are accurate and not misleading. Alongside the commitments the CMA also published an open letter to the fashion retail sector highlighting the need to avoid the greenwashing otherwise businesses risk a fine of up to 10% of global turnover. .. On 17 October 2023, the CMA opened an investigation into Worcester Bosch's "confusing or inaccurate green claims" in its advertising related to 'hydrogen-blend ready' home boilers. In January 2023, the CMA launched an investigation into the accuracy of green claims made about household essentials in the fast-moving consumer goods sector, such as food, drink, and toiletries. On 12 December 2023, the CMA announced it is scrutinising green claims made by Unilever to ensure that shoppers are not being misled.

The Digital Markets, Competition and Consumers Bill ("DMCC Bill"), which is currently in the House of Lords and is set to enter into force in 2024, will bolster the CMA's powers to enforce consumer law in the UK with fines and penalties, including in relation to green claims.

Market Studies: In July 2021, the CMA completed its market study into electric vehicle charging, which looked into promoting change in a market that is essential for the transition to low carbon. The study was followed by a CMA investigation into long-term exclusive arrangements for the supply of electric vehicle charge points on or near motorways. A year later, the CMA launched a market study into the supply of road fuel in the UK and did not make a market investigation reference. As a result of this study, the government accepted the CMA's recommendation to establish a new fuel finder scheme and fuel monitor in the UK. This will help them understand the demand for fuel as the UK transitions to net-zero. The scheme now awaits statutory backing.

White & Case Contact:

Dr. Michael Engel, Partner, London