By The Movement For Community-led Development
Does competition law apply to sustainability agreements at all?
EU Court rulings excluded certain measures (e.g., rules adopted by legal professional bodies) from
European competition law where “the anti-competitive restrictions in question are inherent in or
necessary for the pursuit of a legitimate objective.” However, the draft guidelines draw a clear line in
the sand against that argument: “agreements that restrict competition cannot escape the prohibition of Article 101(1) for the sole reason that they are necessary for the pursuit of a sustainability objective” (paragraph 548).
They do, though, observe that sustainability agreements can only fall under Article 101 if they have an anti-competitive object or effect: “where…agreements do not affect parameters of competition, such as price, quantity, quality, choice or innovation, they are not capable of raising competition law
concerns” (paragraph 551). This was already clear, but the guidelines provide several examples of
agreements that will generally fall outside of the European competition law altogether for this reason:
- measures to eliminate single-use plastics in business premises, not to exceed the temperature levels in buildings, or to limit the number of printed materials;
- the creation of databases containing information about sustainable suppliers, distributors, or production processes, provided there is no obligation to use such suppliers or distributors; and
- the organisation of industry-wide awareness campaigns, provided they do not amount to joint advertising of specific products.