On 23 December 2015, the Minister of Economic Affairs published a Draft Policy Rule on competition and sustainability ("Draft Policy Rule") for consultation. The Draft Policy Rule aims to replace the previous policy rule on competition and sustainability adopted in 2014. The Draft Policy Rule provides guidelines on the assessment of whether agreements relating to sustainability are exempted from the cartel prohibition.
The 2014 policy rule faced considerable criticism, as it was found by many to hamper sustainability initiatives. Examples of sustainability initiatives that were found to be in violation of competition rules by the Netherlands Authority for Consumers and Markets ("ACM") are the agreement between energy producers to close down coal-fired plants and the arrangements between supermarkets, poultry farmers, and broiler meat processors concerning the selling of chicken meat produced under enhanced animal welfare-friendly conditions [see our February 2015 newsletter].
Like the previous policy rule, the Draft Policy Rule contains the factors to be taken into account when assessing whether agreements in the interest of sustainability are exempted from the cartel prohibition. However, the Draft Policy Rule contains some new elements so as to provide a clearer and more concrete framework.
The Draft Policy Rule now determines that restrictive agreements comprising a set of arrangements should be examined as a whole, when assessing the efficiencies of the restrictive agreement.
Also new is the specification that both qualitative and quantitative benefits are to be taken into account in the assessment of the benefit resulting from the restrictive agreement. The 2014 policy rule did not specify whether qualitative or quantitative benefits were concerned, which led the ACM to conclude that benefits must be quantifiable. Furthermore, the Draft Policy Rule exempts, where possible, restrictive agreements that benefit society as a whole, as opposed to agreements not related to sustainability, which should benefit specific groups of consumers in order to be exempted.
The consultation phase ends on 31 January 2016.