Sustainability Map

Europe

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.

European Union

Current position: 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.

Antitrust Rules: On 1 March 2022, the EC published for consultation draft revised horizontal cooperation guidelines (the "Revised Guidelines"), which provide guidance on how to self-assess sustainability agreements under EU competition law. The EC is aiming for the final edition of the horizontal cooperation guidelines to enter into force on 1 January 2023. The Revised 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 Revised 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 no exchange of commercially sensitive information. But, the sustainability standard should not lead to a "significant" increase in price or "significant" reduction in choice. 

The EC does not propose a specific economic framework to analyse sustainability benefits, but encourages companies to submit their sustainability initiatives (in particular those which raise novel issues) for consultation in order to receive informal guidance or even a formal decision on the envisaged conduct. 

A recent €875 million fine imposed on German carmakers, for restricting innovation competition on the development of clean emissions technology by agreeing to certain maximum standards, has caused concern to business as the decision effectively seems to treat a standardisation agreement as a hard-core cartel.

In the merger control area, the EC appears to have discussed sustainability considerations in a 2020 merger case involving copper scrap for refining (M.9409), but the preliminary concerns that the deal potentially could lead to less copper recycling were not sustained at the end of the Phase I investigation. The EC has stated that it intends to use the new Article 22 referral policy under the EU Merger Regulation to catch "acquisitions of nascent competitors that may lead to a loss of innovation in, for example, a sustainability context".

France

Working Paper: The Autorité de la Concurrence ("ADLC") contributed 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: Sustainability was specifically mentioned as one of the ADLC's eight priorities for 2021.

New legislation: A new law combating climate change and strengthening resilience to its effects was introduced in August 2021. This new legislation might be taken into consideration by the French Competition Authority in its future assessments and thus could have an impact on competition.

Notice on fines: The ADLC published a revised procedural notice1 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 its 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".

1 Available in French. 

United Kingdom

Guidelines on Mergers: Environmental sustainability has been flagged as a relevant customer benefit in the Competition & Markets Authority ("CMA") Merger Assessment Guidelines published in March 2021. That same month, the CMA also specifically referred to "supporting the transition to a low carbon economy" as one of the key themes in its 2021/22 Annual Plan.

Antitrust Rules: In line with the CMA's strategic priority of tackling climate change, the CMA published in January 2021 an information sheet on environmental sustainability agreements as a guide to businesses navigating competition law concerns. In October 2021, the CMA published the outcome of its consultation on the vertical block exemption, which recommends that guidance should cover "environmental sustainability".

Consultation on Reform: In July 2021, the UK Government published a consultation on a major proposed reform to competition and consumer policy, and requested the CMA to produce advice to the government on how the competition and consumer regimes could better support the UK's Net Zero and environmental sustainability goals (including climate adaptation). In March 2022, the CMA published its advice. While the CMA deemed that there was no sufficient evidence to conclude that competition law was an obstacle to sustainability, it stated that greater legal clarity, and greater consistency and coordination across sectors and regulators, would help bolster companies' confidence when pursuing sustainability initiatives. The CMA has pledged to continue its "proactive engagement" with stakeholders, and has committed to launching at least one new market study in a Net Zero-relevant market in the next year. 

Sustainability Taskforce: The CMA has launched an in-house "Sustainability Taskforce" to develop formal guidance (in particular on the Competition Act 1998), to lead discussions with government, industry and partner organisations, and to review continually the need for legislative change.

Netherlands

Guidelines: The Autoriteit Consument & Markt ("ACM") has published draft guidelines on sustainability agreements, which form the most detailed and practical contribution to integrating sustainability in competition law. These are now in the form of a second draft, after collaborative feedback on the first draft led to a refinement of the draft provisions. Inter alia, the ACM draft guidelines propose to widen the competition law assessment for what the guidelines call "environmental-damage agreements" (i.e. agreements concerning the reduction of negative externalities, and, as a result thereof, a more efficient use of natural resources). If (i) an agreement is an environmental-damage agreement and (ii) it helps, in an efficient manner, to comply with an international or national standard, or it helps realise a concrete policy goal (to prevent such damage), the ACM believes that users do not need to be compensated in full because it could be sufficient to consider broader benefits for society as a whole. Also, the ACM envisages defining the types of cases for which there is no need to quantify the positive effects of an agreement.

In February 2022, the ACM announced that it had assessed two initiatives using the draft guidelines: one relating to the joint purchase of electricity from a wind farm by businesses and organisations; the other concerning the agreement of grid operators to the use of a uniform price for CO2 in calculation models for grid investments. The ACM found that it had no objection to either initiative, stating that these initiatives helped make the energy sector 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.

Antitrust Rules: As part of the draft guidelines, the ACM has proposed a safe harbour for all pure sustainability agreements and for some "good faith" joint agreements. The chair of the ACM, Martijn Snoep, stated that he intended the guidelines to be "the start of a discussion" with other EU countries.

Greece

Technical Report: The Hellenic Competition Commission ("HCC") has 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.

Antitrust Rules: The HCC has proposed a safe harbour for businesses that are seeking to make sustainable agreements. This safe harbour would ensure that no regulatory consequences are immediately triggered, as long as certain sustainable conditions are met.

Draft Staff Discussion paper on sustainability issues and competition law: In September 2020, the HCC published a 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. For the purposes of launching the public consultation on the issues analysed in the paper, the HCC organised a digital conference on "Sustainable development and competition law".

Sector Inquiry: The HCC has also conducted a sector inquiry into waste management and recycling, which led it to invite comments from the public. A final report is expected to be published in December 2022. 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 July 2021, the HCC launched a public consultation on its proposal to create a regulatory sandbox, which will allow companies to undertake sustainability initiatives without the fear of breaching competition rules. The HCC will assess proposals 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". If approved, the proposal can be implemented on the market under the HCC's supervision for the testing phase, to ensure that no unexpected competition problems occur. The intended 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). 

Next Steps: The HCC envisages issuing guidelines providing the conditions under which the private sector may proceed with collaborations in order to promote sustainability. In addition, the HCC aims to adopt, following a public consultation, a package of measures in order to implement its sustainability goals more efficiently and in co-operation with the European Commission.

Germany

General position of 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 – he is "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. 

Background Paper: In the BKartA's background paper on public interest objectives in competition law, they 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.

Guidance/Merger Cases: The approach taken by the BKartA until now has largely comprised specific individual guidance to businesses related to competitor co-operation, rather than issuing more general overarching guidance (2020/2021 annual report). 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 knowhow 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. However, the BKartA encourages "Initiative Tierwohl" to gradually introduce more competitive elements, by, for example, in the medium term replacing standard surcharges with surcharge recommendations. 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. 

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

Austria

Antitrust Rules: On 10 September 2021, the Austrian Cartel and Competition Law Amendment Act 2021 ("KaWeRÄG 2021") came into force, which includes the aim of increasing sustainability initiatives. Austria is amongst the first countries to formally address sustainability considerations in its legislation. In particular, the KaWeRÄG 2021 introduces the following wording to the exemption clause (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". The Federal Competition Authority is currently drafting guidelines to facilitate implementing this new law into practice.

Sweden

Relevant topics:

  • Finland: 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.
  • Sweden:
    • In April 2020, the Swedish Competition Authority ("SCA") submitted a written opinion in response to the European Commission's (the "Commission") Green Deal consultation. The SCA does not reject the view that sustainability aspects can play a role in the assessment of restrictions of competition. However, it states that sustainability is not a suitable factor to determine the level of competition in a relevant market. Further, the SCA welcomes further guidance from the Commission on the application of sustainability aspects.
    • The SCA's 2021-2023 work programme mentions sustainability as a particular strategic focus area.
  • Denmark: In its assessment of SEAS-NVE's acquisition of the Danish power company Ørsted, the Danish Competition and Consumer Authority ("DCCA") considered sustainability arguments in its market definition of retail sales of power and natural gas. The DCCA concluded that consumers viewed the power and the natural gas sold by different suppliers as differentiated products; for example, because a supplier positioned itself as a particularly green brand (Competition Council's decision of 24 June 2020, "SEAS-NVE's køb af Ørsted selskaber").

Guidance: The Nordic countries published a joint report that 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.

Denmark

Relevant topics:

  • Finland: 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.
  • Sweden:
    • In April 2020, the Swedish Competition Authority ("SCA") submitted a written opinion in response to the European Commission's (the "Commission") Green Deal consultation. The SCA does not reject the view that sustainability aspects can play a role in the assessment of restrictions of competition. However, it states that sustainability is not a suitable factor to determine the level of competition in a relevant market. Further, the SCA welcomes further guidance from the Commission on the application of sustainability aspects.
    • The SCA's 2021-2023 work programme mentions sustainability as a particular strategic focus area.
  • Denmark: In its assessment of SEAS-NVE's acquisition of the Danish power company Ørsted, the Danish Competition and Consumer Authority ("DCCA") considered sustainability arguments in its market definition of retail sales of power and natural gas. The DCCA concluded that consumers viewed the power and the natural gas sold by different suppliers as differentiated products; for example, because a supplier positioned itself as a particularly green brand (Competition Council's decision of 24 June 2020, "SEAS-NVE's køb af Ørsted selskaber").

Guidance: The Nordic countries published a joint report that 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.

Norway

Relevant topics:

  • Finland: 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.
  • Sweden:
    • In April 2020, the Swedish Competition Authority ("SCA") submitted a written opinion in response to the European Commission's (the "Commission") Green Deal consultation. The SCA does not reject the view that sustainability aspects can play a role in the assessment of restrictions of competition. However, it states that sustainability is not a suitable factor to determine the level of competition in a relevant market. Further, the SCA welcomes further guidance from the Commission on the application of sustainability aspects.
    • The SCA's 2021-2023 work programme mentions sustainability as a particular strategic focus area.
  • Denmark: In its assessment of SEAS-NVE's acquisition of the Danish power company Ørsted, the Danish Competition and Consumer Authority ("DCCA") considered sustainability arguments in its market definition of retail sales of power and natural gas. The DCCA concluded that consumers viewed the power and the natural gas sold by different suppliers as differentiated products; for example, because a supplier positioned itself as a particularly green brand (Competition Council's decision of 24 June 2020, "SEAS-NVE's køb af Ørsted selskaber").

Guidance: The Nordic countries published a joint report that 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.

Finland

Relevant topics:

  • Finland: 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.
  • Sweden:
    • In April 2020, the Swedish Competition Authority ("SCA") submitted a written opinion in response to the European Commission's (the "Commission") Green Deal consultation. The SCA does not reject the view that sustainability aspects can play a role in the assessment of restrictions of competition. However, it states that sustainability is not a suitable factor to determine the level of competition in a relevant market. Further, the SCA welcomes further guidance from the Commission on the application of sustainability aspects.
    • The SCA's 2021-2023 work programme mentions sustainability as a particular strategic focus area.
  • Denmark: In its assessment of SEAS-NVE's acquisition of the Danish power company Ørsted, the Danish Competition and Consumer Authority ("DCCA") considered sustainability arguments in its market definition of retail sales of power and natural gas. The DCCA concluded that consumers viewed the power and the natural gas sold by different suppliers as differentiated products; for example, because a supplier positioned itself as a particularly green brand (Competition Council's decision of 24 June 2020, "SEAS-NVE's køb af Ørsted selskaber").

Guidance: The Nordic countries published a joint report that 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.

Italy

New measures: In 2021, the Italian Government presented the National Recovery and Resilience Plan to the Italian Parliament, which takes into account the Italian Competition Authority's ("ICA") proposals for "putting competition at the service of environmental sustainability". The plan includes reforms of Italian antitrust rules affecting the issue of sustainability. These include: the proposed centralisation of public procurement for hydroelectric power stations in order to increase transparency and ensure the broadest participation; new rules to boost competition in the waste management and renewable energy sectors; and new transparent and non-discriminatory criteria for the selection of operators installing charging points for electric vehicles. The plan has been approved by the Italian Chamber of Deputies and the Senate. Moreover, on 4 November 2021, the Italian Council of Ministers examined and finally approved the draft Annual Law for Competition (the "Draft"). The Draft reflects most of the proposals sent to the Italian Government by the ICA and includes rules on energy and environmental sustainability (e.g. waste management services and procedures for authorisations for waste disposal plants).

Recent Cases: Italy allows for so-called "consortiums", which are agreements involving producers and recycling companies that organise the collection of recyclable materials. Since the presence of competing operators within consortia may potentially facilitate anti-competitive agreements, the ICA scrutinises whether these agreements are proportionate to the environmental objectives and contain no unnecessary restrictions on competition (see the contribution of Italy to the OECD paper on Horizontal Agreements in the Environmental Context). The ICA may also target behaviours that could harm sustainability initiatives. For instance, in 2020, the ICA fined a consortium active in recycling and recovery services for PET food packaging for having allegedly abused its dominant position to the detriment of another consortium. Its behaviour was said to hinder the competitor's deployment of an innovative project for the management of recycled materials and traditional urban waste through the progressive installation of automatic collectors on the territory.

Consumer protection: The ICA has been controlling commercial communications concerning green claims and in its decisional practice has fined undertakings for misleading advertising messages linked to sustainability.

Spain

Priority Issue: One of the main elements of the Comisión Nacional de los Mercados y la Competencia's ("CNMC") 2020 Action Plan is the contribution to the achievement of the Sustainable Development Goals ("SDGs") of the 2030 Agenda. Specifically, one of the CNMC's objectives for 2020 was to give visibility to the contribution of its actions to the SDGs. "The CNMC plans to introduce sustainability objectives as one of the cornerstones of its new multi-annual Strategic Plan, currently in the process of elaboration". In its blog post, published by the CNMC in October 2020 ("The debate is served: competition policy and sustainability"), the CNMC found that with regard to SDG 7 ("affordable and clean energy"), competition also plays a key role. The CNMC's Strategic Plan 2021-2026 focusses on, inter alia, digitalisation, sustainability and innovative markets. 

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.

Poland

General Approach of 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 investigated cases concerning co-operation between waste removal companies, but it has not commented on environmental considerations in its decisions. In 2009, the UOKiK prohibited a horizontal (two-to-one) merger in the national market for battery recycling. The UOKiK dismissed the environmental defence brought by the applicant on the ground that any environmental benefits were not sufficiently established and, in any event, they did not counterweigh the negative effects resulting from the merger (see the contribution of Poland to the OECD paper on Horizontal Agreements in the Environmental Context).

In the context of various legislative proposals, the UOKiK has indicated that it views the competitive process as important to promoting 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".

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