Throwing Down the Gauntlet: Sustainability and Competition Law

Suddenly sustainability and competition law has become a trending topic for agencies and practitioners — belatedly, since the subject has been current for some time among academics and civil society groups. But 2020 seems to have marked a turning point.

We have seen the publication of draft guidelines on sustainability agreements by the Dutch competition authority (ACM); a staff discussion paper by the Hellenic competition authority; the inclusion of sustainability in the EC’s consultation on the review of its horizontal guidelines; and a specific EC consultation on the topic. The UK Competition and Markets Authority has also announced that it plans to discuss with NGOs active in this field and the OECD is to hold a roundtable.

All credit to the ACM for being ahead of the game. It was the Netherlands, of course, which gave us the Chicken of Tomorrow episode, with the learnings that it offers.

This article, written by partner Alec Burnside and associates Marjolein de Backer and Delphine Strohl, focuses on the ACM’s draft guidelines, which move already beyond debate and offer a roadmap for sustainability initiatives. Companies which brandish their attachment to ESG, while protesting that antitrust stands in the way of their doing what is needed, have now had their bluff called. The agencies are throwing down the gauntlet: bring us your sustainability proposals, and we will help you along.