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 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".

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 "Draft 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 Draft 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 Draft 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. 

On 10 May 2022, the EC adopted the new guidelines on vertical restraints ("Vertical Guidelines"), which provide guidance on how to self-assess vertical agreements under EU competition law. The EC acknowledges the importance of sustainability in the new Vertical Guidelines, although the topic has not been as prominent as in the Draft Revised Guidelines. 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.

On 8 November 2022, the EC published for consultation draft revised Market Definition Notice ("Notice"), which refers to sustainability considerations as factors to be taken into account when defining the boundaries of the relevant market. Paragraph 12 of the Notice states that "when defining the relevant market, the Commission takes into account the various parameters of competition [including] its level of innovation [and] its quality in various aspects – such as, for example, its durability [and] sustainability."

France

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: Sustainability is one of the ADLC's seven priorities for its 2022-2023 roadmap. The ADLC will pay attention to the most harmful anticompetitive practices in terms of sustainable development and will also support companies promoting ethical behaviour in this respect. To this effect, the ADLC is mobilised through its internal sustainable development network, which is responsible for improving its expertise.

Sustainability is also one of the most important topics in the recent talks of the newly appointed Chairman, as demonstrated during his speech before the French Parliament in January 2022.

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 assessments and it thus could have an impact on competition.

Notice on fines: The ADLC published in July 2021 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.The CMA also specifically referred to "supporting the transition to low carbon growth, including through the development of healthy competitive markets in sustainable products and services" as one of the key themes in its 2022/23 Annual Plan.

Antitrust Rules: In January 2021, the CMA published an information sheet on environmental sustainability agreements as a guide to businesses navigating competition law concerns. However, this introduced no additional guidance beyond the existing rules for "green" cooperation. More recently, the CMA published guidance on the Vertical Agreements Block Exemption Order ("VABEO"), which entered into force on 1 June 2022 and replaced the retained EU framework for vertical agreements. The guidance noted that, for direction on the assessment of a 'fair share' of consumer benefits in the context of sustainability agreements, reference should be made to the CMA's 2022 advice to the Government (discussed below), as well as any subsequent publications.

Proposals for 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, following a public consultation, the CMA published its advice to the Government. 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 co-ordination across sectors and regulators, would help bolster companies' confidence when pursuing sustainability initiatives. To promote clarity and certainty, the CMA intends to publish guidance on (i) when sustainability agreements will not restrict competition under Chapter 1 of the Competition Act 1998 ("CA98"), (ii) the concept and measurement of 'benefits' in a sustainability context (under section 9 of the CA98), and (iii) the issue of what constitutes a 'fair share' of consumer benefits for the purposes of benefiting from an exemption.

Sustainability Taskforce: The CMA's March 2022 advice to the Government announced the launch of an in-house "Sustainability Taskforce" to develop formal guidance (in particular on the CA98), to lead discussions with government, industry and partner organisations, and to review continually the need for legislative change. The Taskforce will play a role in ensuring that the UK economy "not only serves the interests of consumers but also delivers on its environmental responsibilities".

Market Studies: In July 2021, the CMA completed its market study into electric vehicle charging, the purpose of which was to promote change in a market which is important for the transition to low carbon growth. The market study was followed by a CMA investigation into long-term exclusive arrangements for the supply of electric vehicle chargepoints on or near motorways. The CMA has committed to launching at least one new market study in a Net Zero-relevant market in the 2022/23 financial year.

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.

Up until mid November 2022, the ACM had assessed five sustainability initiatives using the draft guidelines: 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 centers 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.

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.

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.

Greece

Technical Report: 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.

Antitrust Rules: The new 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 (please 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 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, in order to encourage and allow companies to undertake sustainability initiatives without the fear of breaching competition rules. 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). Following the positive feedback to the public consultation, the HCC launched the sandbox in October 2022, in accordance with the new article 37A of law 3959/2011. 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.

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 in 2021 – 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. In the recently pusblished BKartA annual report 2021/2022, president Mundt emphasized, however, that antitrust law does 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 shall be expected in this legislative period that will focus on sustainability initiatives.

Background Paper: In the BKartA's background paper on public interest objectives in competition law, the authority 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 BKartA has so far largely given only specific individual guidance to businesses related to competitor cooperation, rather than issuing more general overarching guidance (2020/2021 annual report). The more recent 2021/2022 annual report now provides 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 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. 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+ program"). 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+ 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.

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 ("sustainability exception") 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".

Guidance: 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.

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.

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

  • 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").
  • In the 2022 Competition Council's report, the DCCA highlights sustainability and climate change mitigation as a focus area.

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

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.

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:

Already 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 (implemented by the 2021 Annual Competition Law ("2021 ACL"), see below).

On 5 August 2022, the Italian Parliament adopted the 2021 ACL, which entered into force on 27 August 2022 and introduced new rules on energy and environmental sustainability. For example, it requires motorway concessionaires to select the operator who requests to install electric charging stations through competitive, transparent and non-discriminatory procedures, in compliance with a rotation principle while rewarding operators who propose to use highly innovative technologies (Article 12). Moreover, fuel distribution plants are required to regularly update their official register entry subject to administrative fines in case of non-compliance (Article 13).

The Italian Government plans to propose the 2022 Annual Competition law ("2022 ACL") in the course of 2023 with entry into force expected by December 2023. The focus will likely be on the development of the electricity network and the promotion of second generation electricity smart meters.

Recent Cases: The ICA has been controlling commercial communications concerning green claims and in its decisional practice 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.

Consumer protection: On 31 March 2022, the ICA published its Annual Report for 2021 where it found that when analysing the relationship between competition and sustainability, greater sensibilization 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.

Spain

Priority Issue: One of the main elements of the Comisión Nacional de los Mercados y la Competencia's ("CNMC") 2021-2022 Action Plan is the contribution to the achievement of seventeen Sustainable Development Goals ("SDGs") of the 2030 Agenda. In the 2021-2022 Action Plan, the CNMC states that its actions will align with the SDGs through the detection of restrictive practices, including bid rigging in public procurement and, thus, contributing to the achievement of SDGs such as "Building resilient infrastructure, promoting sustainable industrialisation and fostering innovation", among other SDGs. 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 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 also 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 recognized 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 recognized 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".

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