The contours of a clarified legal framework are taking shape
When it comes to sustainable development, companies have started to take part in the change. While, at first glance, competition policy would not appear to be at the forefront of sustainability issues, competition law and sustainable development nevertheless find a meeting point to the extent that, by safeguarding the competitive process, competition law protects and promotes not only consumer welfare, which is increasingly expressed towards sustainable products, but also sustainable innovations. Even more directly, competition law provides a framework for the initiatives envisaged by the economic actors in the area of sustainable development. Nevertheless, in some cases, these initiatives may potentially contradict competition law. The examination of these initiatives by competition authorities then makes it possible to secure cooperation agreements that are favourable to sustainable development and that generate positive effects in terms of public interest that offset the negative effects on competition while sufficiently benefiting consumers.
In France, the Autorité is aware of the difficulty for economic actors to ensure, in certain cases, that their agreements do not create issues with respect to competition rules. That is why the investigation services carry out in-depth reflections on these topics, within a dedicated internal network (Sustainable Development Network) and why the Autorité participates in the various projects undertaken in international forums, whether at the OECD, within the European Competition Network or the International Competition Network, one of the major themes of the 2021 edition of which was devoted to sustainability (To watch the ICN conference, Sustainable Development and Competition Law, 13 October 2021, https://icn2021budapest.hu/site/).
At the European level, the process of revising the rules on horizontal cooperation agreements between companies is also underway. The aim is to adapt the current rules to the economic and societal changes that have taken place over the last ten years in terms of digital and green transitions. The draft guidelines include a new chapter on the assessment of horizontal agreements pursuing sustainability objectives. It therefore clarifies for businesses when they can lawfully cooperate with competitors, including, as the case may be, through individual exemption in the most complex situations. In particular, the draft gives “special attention to agreements that set sustainability standards, as this is expected to be the most common form of cooperation to achieve sustainability objectives” (EC Press Release, 1 March 2022 and Explanatory Note accompanying the draft revised Horizontal HBER and Guidelines).