On 6 May 2014, the Dutch Minister of Economic Affairs ("Minister") adopted a new policy rule on the assessment of agreements in the interest of sustainability. The policy rule lays down a number of aspects that the Authority for Consumers & Markets ("ACM") needs to take into consideration when assessing whether such agreements fall under the exception of Article 6(3) of the Dutch Competition Act ("DCA").
The new policy rule is aimed at agreements meant to advance sustainability. Although the policy rule does not provide an exact definition of sustainability, it does indicate that that concept encompasses at least the following interests: the environment, ecology, public health, animal welfare and fair trade. Undertakings that enter into agreements to develop production methods that contribute to the protection of such interests, can rely on the policy rule to qualify for the exception laid down in Article 6(3) DCA. That provision exempts agreements from the cartel prohibition of Article 6(1) DCA.
To invoke Article 6(3) DCA four conditions must be met: (i) the agreement creates benefits; (ii) a fair share of these benefits goes to consumers; (iii) the restrictions must be indispensable; and (iv) no possibility of eliminating competition in a substantial part of the market. The new policy rule provides a specific framework for the ACM to assess agreements in the interest of sustainability in relation to these conditions. For example, when assessing the first and second condition, the ACM will from now on also weigh the long term benefits of agreements, such as reduced carbon dioxide emissions. In addition, the policy rule recognizes the limits of the third and fourth condition when dealing with agreements advancing sustainability. The accompanying explanatory statement also provides various practical examples as to how specific agreements should be assessed under the policy rule.
Overall, the new policy rule gives undertakings interested in promoting sustainability more clarity as to how the ACM will assess their agreements. This in turn should give them more possibilities to rely on the exemption of Article 6(3) DCA when entering into such agreements. It is nevertheless important to point out that these agreements should still be assessed on a case-by-case basis, since the policy rule does not automatically exempt them from the cartel prohibition.