Middle East and Africa
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".
Merger and Antitrust Rules: Although South Africa was one of the first countries to adopt a public interest provision in its competition law in 1998 (whereby, in the aftermath of apartheid, an exemption for inter alia "firms controlled or owned by historically disadvantaged persons ("HDPs") to become competitive" was created), the law does not currently expressly provide for sustainability as a relevant public interest exemption.
The Competition Act created four public interest grounds, only one of which specifically related to HDPs. However, given the structure of South Africa's economy, pretty much all of the public interest grounds largely impacted HDPs (e.g. employment). Moreover, even though the law does not expressly refer to environmental sustainability, the Minister of Trade, Industry & Competition (on whom the public interest factors primarily lie) has seemingly read "Effect on particular sector or region" to include environmental sustainability goals which are in line with the Republic's push to move away from coal to renewable energy.
Guidelines: The guidelines on the assessment of public interest provisions in the merger regulation listed "impact on regional sustainability" as one of the factors to consider when the Competition Commission assesses the likely effect of a merger on a particular industrial sector or region. The definition of "sustainability" for these purposes is typically considered from an economic perspective only, although in a recent decision of the Competition Tribunal, remedies relating to environmental sustainability were agreed between the competition authorities and the merging parties.
Antitrust Rules: Israel allows for an approval procedure where public interest, including environmental considerations, can be taken into account when deciding on restrictive arrangements (see the contribution of Israel to the OECD paper on Horizontal Agreements in the Environmental Context). In such cases, practice indicates that the positive effect on the environment must be significantly greater than the damage resulting from an anti-competitive agreement.
Position of Antitrust Authority: The Israel Antitrust Authority has also acted as an unofficial advisor in the legislative process for the regulation of the market for the collection of beverage containers, where it expressed a view that environmental legislation should be structured in a manner that promotes competition.