EU Competition Law and Sustainability: key aspects from the Dutch ACM Draft Guidelines towards a unified EU approach

Abstract

Following the many demands to have clarity on when cooperation agreements pursuing sustainability objectives are compatible with EU competition rules, and, specifically, when can they fall under the exception of art. 101(3) TFEU, two key concepts will be discussed: ‘efficiency gains’ and ‘fair share’. The starting line of the discussion is the approach taken by the ACM in the recent Draft Guidelines on Sustainability Agreements (second draft version, January 2021). While some consider that the ACM goes too far broadening the conditions for exempting sustainability agreements, others consider the proposal too narrow. This paper analyses the solutions proposed by the ACM regarding the concepts of efficiency gains and fair share, and evaluates its possible adequacy at EU level in the upcoming guidelines since, ideally, all the EU countries should follow the same interpretation to avoid market inequalities in this regard. The solutions proposed by the ACM are studied in order to determine what could/should we take at EU level (or what not) or whether a different underlying approach could be taken.

Keywords: Article 101(3) TFEU, Draft Guidelines ACM, Efficiency Gains, Fair Share, Sustainability Agreements