Diederik Schrijvershof has responded in Global Competition Review to ACM’s new draft Sustainability Agreements Guidelines. On 9 July 2020, the Netherlands Authority for Consumers and Markets (“ACM”) published its draft Sustainability Agreements Guidelines. Those guidelines will replace its 2014 Vision Document on Competition and Sustainability and its 2016 Basic Principles for Oversight of Sustainability Agreements. The European Commission responded to ACM’s proposal that same day; see here.
ACM explained in Dutch newspaper De Volkskrant, among other publications, the introduction of its new draft Sustainability Agreements Guidelines. The subject of the possibilities and impossibilities of cooperation among competitors regarding sustainability and risks of “greenwashing of cartels” regularly gives rise to public debate; see here. ACM is regularly regarded as a liability in sustainability initiatives. Previously, for instance, the Kip van Morgen (Tomorrow’s Chicken) initiative encountered opposition from ACM, after ACM had assessed the initiative on the basis of its Vision Document on Competition and Sustainability
The European and Dutch competition rules prohibit agreements among companies that restrict competition. Sustainability agreements among competitors may be inconsistent in certain circumstances with the Dutch and European cartel prohibitions. ACM’s guidelines describe the competition law possibilities available to companies to make agreements aimed at making the economy and society more sustainable. Sustainability includes protection of the environment, biodiversity, climate, public health, animal welfare and fair trade. With its Sustainability Agreements Guidelines, ACM now wishes to broaden the possibilities for cooperation among competing companies in the field of sustainability. Companies will have more possibilities of making agreements, particularly in order to achieve climate targets, such as reducing CO2 emission. ACM believes that is possible if the advantages for society as a whole outweigh the disadvantages of the possible restriction of competition.
ACM has announced that it will not immediately impose fines if the Sustainability Agreements Guidelines have been observed to the extent possible in making sustainability agreements but those agreements ultimate conflict with competition law. In that case ACM first wishes to consult with the parties involved. That is a positive development. That approach is not entirely new: ACM has applied it in first-line healthcare since 2015. According to an ACM evaluation, that approach is successful in that sector.
“Maverick Advocaten partner Diederik Schrijvershof in Amsterdam said that, although the authority’s draft guidelines “seem to be ground-breaking”, its approach of refraining from fining companies and instead asking for the agreement to be amended “has been tried and tested by the authority regarding cooperation in the healthcare sector”.
The enforcer has received a lot of criticism for its approach in the healthcare sector, but so far “there is no reason to assume that this method has led to an increase in cartels”, he said.
Schrijvershof added that the authority’s decision to publish the guidelines in Dutch and English “fuels the debate” on sustainability and competition law across the EU. “This is a debate that is very much needed in society also for the benefit of future generations,” he said.”
Responding to ACM’s draft guidelines
It is possible to respond to ACM’s draft guidelines: ACM has organised a consultation on this draft guideline until 1 October 2020. Please contact us if you have any questions about that consultation. More information on developments in the field of sustainability can be found in our earlier blogs here, here, here and here.
More information on dawn raids by ACM and the European Commission can be found at invalacm.nl.