Americas

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. Lastly, 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 US Agency position: The U.S. antitrust agencies, the Federal Trade Commission ("FTC") and the Department of Justice ("DOJ"), view current antitrust laws as providing enough flexibility to allow well-structured and pro-competitive joint action in pursuit of social welfare objectives. However, both agencies have asserted that there is no automatic ESG exemption for conduct that violates the antitrust laws. Thus, as with other types of conduct, pro-competitive or competitively-neutral joint action in pursuit of ESG goals likely would not violate the antitrust laws, while joint ESG action can be considered illegal if it constitutes an agreement that unreasonably restrains trade. Moreover, a company's external and internal documents need to be carefully drafted to avoid creating the appearance of illegal, anticompetitive agreements.

The Securities Exchange Commission ("SEC") has proposed rules and rule amendments that would require public companies to disclose climate-related information and that would require investment advisers and investment companies to disclose ESG factors considered by funds and advisers.

Conflicting enforcement priorities at the state and federal levels: 

Certain state attorneys general have launched investigations of signatories to global climate initiatives, claiming that coordinated ESG efforts are de facto anticompetitive horizontal agreements. 

At the federal level, the new Republican majority in the House of Representatives has promised to investigate and hold hearings on the alleged anticompetitive effects of entities like financial firms and energy companies participating in global ESG initiatives, and they have formed a "Republican ESG Working Group" to combat potential market harms arising from ESG policies. 

By contrast, rather than seeking to broadly condemn ESG initiatives, the FTC has continued to bring enforcement actions against companies for "greenwashing"— a company making environmentally-friendly claims about its products that the FTC contends misrepresent a company's ESG activities and/or overstate the ecological benefits of its products. Further, the U.S. agencies have suggested that a lack of commitment to ESG policies may be a reason to challenge a proposed merger under a newly-proposed holistic approach to merger review. For instance, the U.S. agencies will now consider the merging parties' social welfare commitments, level of unionization of employees, use of non-compete agreements, and environmental or corporate governance problems that may result from the merger. Nonetheless, the U.S. agencies have stated that positive social welfare or ESG outcomes are not a basis to approve an otherwise illegal merger. 

How should companies proceed? Given the evolving landscape and competing positions in the US on ESG issues that seem to be breaking down along political party lines, companies should carefully assess how they structure and describe their ESG policies, as well as whether and how they engage with third-party ESG initiatives. Please contact Martin Toto, Michael Hamburger, Kristen O'Shaughnessy, or your usual White & Case contact for further guidance on these issues. 

Merger and Antitrust Rules: Under the Competition Act and the accompanying guidance in Canada, public policy considerations, including environmental objectives, are distinct from pure competition considerations and are, as such, beyond the powers granted to the Canadian Competition Bureau ("CCB") under the Competition Act.

Recent Cases fall into two main categories. First, in Tervita, the Supreme Court of Canada affirmed that when weighing an efficiencies defence, environmental effects may be considered to the extent that there are related quantifiable economic effects. Second, other cases focussed on "greenwashing", whereby misleading environmental marketing claims have been deemed to fall foul of the Competition Act.

Change on the horizon? Sustainability-related objectives and considerations were not included in the June 2022 amendments to the Competition Act, nor were they raised in the CCB's reform submission in response to Senator Howard Wetston's consultation regarding the efficacy of Canada's competition regime (which is thought will inform any additional amendments to the Competition Act that may be tabled in the coming year or so). However, the CCB did host a Green Growth Summit in September 2022 to hear from various stakeholders on the intersection between sustainability and competition law and policy, to help inform its future enforcement strategy and policy direction. It remains to be seen to what extent Canada will engage with sustainability objectives as part of its competition law policy moving forward.