Sustainability is high on the agenda of business and regulatory authorities around the world. A growing number of jurisdictions are beginning to adopt specific competition law policy and guidance to promote sustainability goals (including more broadly ESG). Furthermore, some agencies have started to actively monitor and target greenwashing, i.e., misleading claims with respect to a company's environmental behaviour. This interactive map provides a general overview of the latest developments in selected jurisdictions, and highlights the most important recent and expected changes to the competition rules reflecting sustainability considerations. Specific guidance in the area of merger policy is noted where relevant. Non-competition developments, such as general court judgments based on environmental sustainability considerations (e.g. the Urgenda and Shell judgments in the Netherlands) are not covered.
This map is based on knowledge built up through White & Case's long-standing presence in these jurisdictions, its close relationships with local counsel in the area, and on publicly available sources. Should you require more detailed information on a jurisdiction (or others not included in the map), please contact Dr Tilman Kuhn or your usual White & Case contact. This page was last updated in November 2022. Please also see our broader ESG and Sustainability page for additional helpful materials.
Organisation for Economic Co-operation and Development
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 position: The U.S. antitrust agencies, the Federal Trade Commission ("FTC") and the Department of Justice, view current antitrust laws as providing enough flexibility to allow well-structured and pro-competitive joint action in pursuit of social welfare objectives. However, such joint action can be considered per se illegal if it restricts output, increases prices or reduces competition along some other dimension, or can be deemed anti-competitive under a rule of reason analysis if, on balance, the joint conduct harms competition.
Change on the horizon? The U.S. agencies under the Biden Administration are taking a more stringent antitrust enforcement approach, including a focus on social welfare issues. The Assistant Attorney General, Jonathan Kanter, has indicated that there are social welfare consequences that should not be overlooked when reviewing mergers. As part of the FTC's stated goal to take a holistic approach, it is now including the following as part of its antitrust review process: ESG/social welfare questions to merging parties; unionization and non-compete agreements; environmental issues; and corporate governance practices. Local state attorney generals also appear to be focused on ESG issues. However, the impact of the U.S. agencies' focus on social welfare issues has yet to be seen.
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.