Competition law goes green: the European Commission’s new initiatives
The European Commission announced the results of its call for evidence under the Green Deal in a speech by Inge Bernaerts, Director of Policy & Strategy at DG COMP on 10 September 2021 and in the first issue of the Competition Policy Brief of September 2021.
- On merger control
The Commission noted the need to take into account consumer preferences for environmentally friendly products in the definition of the relevant market, but also to prevent predatory acquisitions of companies involved in “green innovation“.
In response, the Commission indicated that it had taken these various remarks into account in the context of the revision of its notice on the relevant market, but also in its notice on the implementation of Article 22 of Regulation 1/2003, which allows the control of a merger operation below the notification thresholds.
- On anti-competitive practices
The call for evidence highlighted the lack of clarity in the assessment of the pursuit of environmental objectives in the context of cooperation agreements, and in particular in the assessment of efficiencies within the meaning of Article 101(3) TFEU.
Accordingly, the Commission announced to provide more clarity on the consideration of environmental objectives in the current review of vertical and horizontal exemption agreements, and in particular on whether an agreement relating to sustainable products can be considered as providing benefits to consumers that justify certain restrictions of competition. It also indicated that environmental objectives will have to be assessed as qualitative efficiencies within the meaning of Article 101(3) TFEU.
In addition, it should also be noted that agreements relating to the agriculture sector are exempted from the application of Article 101 TFEU when they are sustainability agreements between producers and other actors in the food chain and if the resulting restriction of competition is indispensable to the objective they serve. To better understand this exception, the Commission will publish guidelines in early 2024.
By Michel Ponsard for the Competition Department.
Link to the speech: https://ec.europa.eu/commission/commissioners/2019-2024/vestager/announcements/competition-policy-support-green-deal_en
Link to the September 2021 Competition Policy brief: https://ec.europa.eu/competition-policy/index/news/competition-policy-brief-12021-policy-support-europes-green-ambition-2021-09-10_en