Dutch Competition Authority consults on Guidelines that pave the way for more flexibility in the field of sustainability agreements

Companies are under increasing pressure to ensure they are operating in a sustainable manner and, in turn, contributing to broader goals of sustainable growth (e.g. achieving CO² reduction goals). However, meeting such objectives often requires companies to cooperate with competitors in order to achieve the necessary scale or combine the required know-how. It is in this context that the Dutch Authority for Consumers and Markets (the "ACM") recently published draft guidelines in respect of so-called sustainability agreements entered into between competitors or vertically linked companies (the 'Draft Guidelines on Sustainability Agreements – Possibilities within competition law', hereafter the "Guidelines").

The ACM is the first competition authority in the EU to take such a public (formal) stance on this issue. In doing so, the ACM recognizes that agreements between companies (including between competitors) can contribute to public goals of sustainable development. This move is a testament to the ACM's and the Dutch Government's support of sustainable growth initiatives and is likely to foster a similar focus within other competition authorities in the EU (and possibly beyond). In that respect, the European Commission (the "EC") has already expressed support and acknowledges the need for clear guidance on agreements between companies that aim to reduce negative externalities of economic growth on humans, animals and the environment more generally. In fact, the EC has indicated it is looking closely at including sustainability agreements into the updated Horizontal Block Exemption Regulation expected in 2022.

The Guidelines provide a practical outline of how competition law, which is sometimes viewed as an obstacle to cooperative sustainability efforts, is to be applied in this specific context. The Guidelines are currently open for public consultation. Stakeholders can submit comments until 1 October 2020.

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