On 5 October 2016 and 2 December 2016 the Dutch Ministry of Economic Affairs, respectively, the Dutch Authority for Consumers and Markets published guiding principles regarding the assessment of sustainability arrangements under competition rules.
Even though an increasing number of businesses nowadays work with sustainability goals, the Ministry of Economic Affairs and the Dutch Authority for Consumers and Markets (ACM) noticed that companies were reluctant to cooperate in the field of sustainability. The image exists that the competition rules interfere with sustainability arrangements. The critical attitude of the ACM towards previous sustainability initiatives, such as ‘De Kip van Morgen’ has undoubtedly contributed to this.
Such image is, nevertheless, in many cases not correct. The competition rules leave plenty of room for sustainability arrangements that do not restrict competition. Furthermore, even if sustainability arrangements restrict competition, such arrangements may still be allowed if their benefits outweigh the negative effects of the restriction of competition.
In order to prevent businesses from abstaining from sustainability initiatives due to uncertainty about the supervision of the ACM, the Ministry of Economic Affairs and the ACM adopted respectively revised Policy Guidelines (including an explanatory note) and Guiding Principles.
The Policy Guidelines introduce specific aspects that the ACM will take into account when assessing whether sustainability arrangements comply with the criteria of article 6(3) of the Dutch Competition Act (the Dutch equivalent of Article 101(3) TFEU), amongst which:
- long-term benefits and benefits for the society as a whole;
- long-term quantitative and qualitative benefits for consumers;
- ‘first mover disadvantages’; and
- possibilities of effective competition on parameters other than sustainability.
The explanatory note accompanying the revised Policy Guidelines provides further guidance.
In addition to this, the Guiding Principles provide three principles on the basis of which the ACM monitors sustainability initiatives:
- the ACM will not take action against sustainability initiatives that enjoy broad social support if all parties involved (such as the government, citizen representatives, and businesses) are positive about the arrangements;
- the ACM may initiate an investigation upon receiving complaints or (worrying) signs regarding sustainability arrangements;
- the ACM helps to find quick and effective solutions in case of (potential) problems.
It is up to the parties involved in sustainability initiatives to assess whether or not their arrangements comply with the competition rules (self-assessment). The ACM’s ‘decision tree’ helps businesses with such self-assessment. Should businesses, nevertheless need help, the ACM advises them to consult a competition lawyer.