Sustainability Map

Asia-Pacific

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 sustainable goals. 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 Jacquelyn MacLennan, Dr. Tilman Kuhn or your usual White & Case contact. This page was last updated in April 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.

Japan

Guidelines: The Japan Fair Trade Commission ("JFTC") has not issued any guidelines that would provide general principles specific to sustainability and competition law. However, the "Guidelines concerning Joint Activities for Recycling under the Antimonopoly Act" were issued in 2001 and updated in 2010 (see also the English translation of the guidelines before the amendments in 2010). According to the Guidelines, even where multiple companies agree on the recycling costs of certain products, if the ratio of such costs to the sales price of the product is small, it is unlikely to violate the Anti-Monopoly Act ("AMA").

Consultation cases: There are two JFTC consultation cases where the JFTC concluded that co-ordination amongst competitors would not violate the AMA because the relevant objective was legitimate and the co-ordination was necessary. In Case No. 12 of FY2019 JFTC consultation cases, the JFTC concluded that a retailers' trade association's plan of implementing new guidelines for its members to not provide conventional plastic bags, and to provide lower environmental impact plastic bags instead, charged to customers at three yen (approximately three € cents), would not violate the AMA because, amongst various reasons, it has a legitimate objective based on the plastic resource recycling strategy promoted by the Government of Japan, and the plan in question is within the reasonable scope of the objective. (Another pertinent JFTC consultation case from FY2007 is available at pp.6-7 of this link). 

Ongoing developments: In March 2022, the Ministry of Economy, Trade and Industry started a "Study Group on Competition Policy for achieving a Green Society" in order to discuss competition policy issues that arise when encouraging efforts to achieve a carbon-neutral society. Meetings of the Study Group are to be held once a month or every other month, and the intention is for new guidelines to be prepared.

New Zealand

Merger and Antitrust Rules: New Zealand's authorisation regime enables the New Zealand Competition Commission ("NZCC") to authorise a merger, acquisition or contractual arrangement that otherwise substantially lessens competition in a market if the benefits to the public outweigh the detriments (the "public benefit test"). Whilst economic efficiencies are a typical example of relevant benefits, the New Zealand courts have recognised benefits beyond economic efficiencies when assessing the public benefit test, including "environment, health or social welfare" benefits. The NZCC has previously considered benefits such as "reduced pollution or other environmental improvements" and detriments such as "adverse effects on the environment" in its assessment.

Exception to cartel prohibition: Section 31 of the Commerce Act provides an exception to the cartel prohibition for "collaborative activities" between competitors (such as joint ventures) that are not for the dominant purpose of lessening competition between the competitors, provided that any cartel provisions that are part of the collaboration are reasonably necessary for that legitimate purpose. The NZCC has considered that competitors' legitimate purposes for collaboration may include environmental, health and safety, or other social welfare purposes. It is important to note that this exception does not provide protection from the prohibition on arrangements that substantially lessen competition in a market (only from the cartel prohibition), but such arrangements can be authorised by the NZCC if the benefits to the public outweigh the detriments (as described above).

Recent Cases: The NZCC has recognised sustainability benefits in several authorisation decisions to date, for example, in Refrigerant License Trust Board and Nelson City Council and Tasman District Council. However, in Nelson City Council and Tasman District Council, the NZCC, whilst recognising environmental benefits, did not consider these benefits to be determinative in its final decision. The NZCC noted in its December 2020 "Sustainability and Competition" submission to the OECD that "generally, these benefits were unable to be quantified and did not materially affect the NZCC's final determination". This demonstrates that it may be difficult to rely on environmental benefits alone to justify authorisation where an arrangement has the effect of substantially lessening competition in a market (but the weighing of environmental benefits against competition detriments will always be fact-specific in any given case).

China

Anti-Monopoly Law Draft Amendment: The 2020 draft amendment to China's anti-monopoly law could make it harder for undertakings to fall under the general exemption covering agreements that have a positive social benefit (e.g. energy savings, environmental protection). This exemption is rarely applied in practice and there are no available cases where an otherwise anti-competitive agreement would be successfully defended on this basis. The main change from a sustainability perspective is that, for an exemption to qualify under efficiency grounds, the applicant would have to show that such efficiencies are "indispensable" to the desired sustainability goal. The draft seems to be under review by the legislators.

Australia

Authorisation based on public benefit test: The Australian Competition and Consumer Commission ("ACCC") administers an ex ante approval procedure, whereby the ACCC may provide statutory protection from legal action against mergers or restrictive trade practices that may reduce competition if there is a net public benefit. Some sustainability initiatives have been considered to satisfy that test. Examples include initiatives whereby a levy was authorised for schemes which promoted recycling and environmentally conscious disposal, such as the Battery Stewardship Scheme, Tyre Stewardship Scheme, and a paint collection and disposal scheme.

The ACCC has also recognised the environmental benefit of the reduction of greenhouse gas emissions in its authorisation of: 

(i)    the Barwon Region Renewable Energy Project, a Western Australian Local Government Association energy group, and Equinix Australia, which in each case created joint, renewable energy purchasing groups to pool electricity demand and jointly tender for Power Purchasing Agreements; 

(ii)    collective bargaining for waste disposal in respect of a renewable organics network project; and 

(iii)    joint purchasers for a large-scale renewable wind energy project

More generally, the ACCC has considered environmental benefits when granting a number of recent authorisations to local councils for the collective tendering of recycling services (here and here) and e-waste collection.

Priority Issue: The ACCC listed consumer and fair-trading issues in relation to environmental claims and sustainability as one of its Compliance and Enforcement Priorities for 2022/23. In a speech announcing these priorities, former chair of the ACCC, Rod Sims, expressed concerns relating to the false promotion of environmental practices by businesses, and spoke of the "unfair competition" that genuine environmentally-friendly business face from "businesses making misleading green claims without incurring the same costs." Mr. Sims warned that the ACCC's focus will extend beyond consumer goods, to also consider claims made in the manufacturing and energy sectors, and regarding carbon neutrality.

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