On 2 December 2016, the Authority for Consumers and Markets ("ACM") adopted guiding principles in relation to sustainability arrangements, together with an accompanying 'decision tree', providing guidance for conducting an initial assessment of the compatibility of the sustainability initiative with the competition rules.
Sustainability is high on the agenda of both the Dutch Ministry of Economic Affairs and the ACM. In the beginning of October 2016, the Ministry of Economic Affairs published revised policy rules and an explanatory note, introducing specific factors that the ACM must take into account when assessing sustainability arrangements [see our November 2016 newsletter article].
Businesses are increasingly seeking to cooperate in relation to sustainable products or services, for example in the field of public health, animal welfare or fair trade. In order to prevent the hampering of legitimate cooperation between competitors in the area of sustainability – for fear of risking high antitrust fines – the ACM has published three basic principles, which it considers decisive for its enforcement activities in relation to sustainability arrangements:
1. The ACM will not take action when sustainability arrangements are supported by broad social consensus.
2. The ACM may open an investigation following complaints or other signals regarding sustainability arrangements.
3. The ACM will strive to swiftly and effectively resolve any potential concerns.
In practice, businesses should continue to adopt a prudent approach towards cooperating with competitors on sustainability matters. The ACM reserves its right to take action following complaints, even if the sustainability arrangement enjoys broad social support from e.g. the government and other businesses. However, the ACM has shown its willingness to take swift and effective action to address potential concerns by allowing businesses to amend (parts of) a sustainability arrangement without necessarily blocking the initiative or imposing a fine.