Asia-Pacific

Horizontal agreements in the environmental context: In 2020, the OECD issued a paper that discusses whether competition policy should be influenced by sustainability. The 2020 paper follows the OECD's 2010 paper, which considers, from national perspectives, the interaction between horizontal agreements with environmental goals and competition law policies.

The 2020 paper also analyzes the substantive application of competition law to sustainability issues by exploring the extent to which competition law can be interpreted in a way that fosters or limits sustainability initiatives. In addition, Australia and New Zealand, Germany, Greece, Lithuania and the Netherlands have submitted contributions to this discussion. The OECD's 2020 paper provides a thorough introduction to the state of play of sustainability in the context of competition law. It encourages agencies to be clear about their objectives and priorities in order to provide clarity on how sustainability fits into competition law, with formal and informal guidance emphasized. It also examines approval procedures, sandboxing, admissible evidence, capacity, fining and international cooperation as possible measures to further sustainable goals. In December 2021, the OECD roundtable assessed these issues again and published a follow-up paper specifically on environmental considerations in competition enforcement. Additionally, the 2022 OECD Competition Open Day addressed, inter alia, green innovation. In December 2022, the OECD Global Forum on Competition will discuss the goals of competition policy including the question on whether "competition law and policy needs to adapt as a policy instrument to better accommodate socio-economic trends such as the rising importance of sustainability."

In January 2023, the OECD held a high-level symposium on pro-competitive policies for a sustainable economy, during which the attendees discussed how competition policy can contribute to the objectives of economic growth and green transition.

Guidelines: On March 31, 2023, the Japan Fair Trade Commission (JFTC) published the "Guidelines Concerning the Activities of Enterprises, etc. Toward the Realization of a Green Society Under the Antimonopoly Act" (English translation is available here). The Guidelines are organized in five chapters, including Joint Activities (Part I); Restraints on the Business Activities of Trading Partners and Selection of Trading Partners (Part II); Acts Constituting Abuse of Superior Bargaining Position (Part III); Business Combinations (i.e., mergers) (Part IV); and Consultation with the JFTC (Part V). In cases where efforts by businesses are expected to have both pro- and anti-competitive effects, the JFTC will consider whether such efforts violate the Anti-Monopoly Act (AMA). The JFTC will comprehensively review the pro- and anti-competitive effects arising from such efforts, taking into consideration (a) the rationality of purpose and (b) the reasonableness of means (e.g., whether there are other less restrictive alternative means).

Consultation cases: There are two JFTC consultation cases in which the JFTC concluded that coordination among competitors does not violate the AMA because the relevant objective was legitimate, and the coordination was necessary. In Case No. 12 of FY2019 JFTC consultation cases, the JFTC concluded that a retailer trade association’s plan of implementing new guidelines for its members to not provide conventional plastic bags, and to provide lower environmental impact plastic bags instead, charged to customers at three yen (approximately three € cents), does not violate the AMA. This is because, inter alia, it has a legitimate objective based on the plastic resource recycling strategy promoted by the Government of Japan, and the plan in question is within the reasonable scope of the objective. (Another pertinent JFTC consultation case from FY2007 is available at pp.6 -7 here).

Recent developments: Article 2-2 of the Act on Promotion of Global Warming Countermeasures (Act No. 117 of 1998, as amended, PGWC) calls for the realization of a de-carbonized society by 2050. The JFTC encourages companies to consult with the JFTC, and the JFTC will continue to review the guidelines appropriately in light of changes in market and business activities, enforcement and consultation cases.

Merger and antitrust rules: New Zealand's authorization regime enables the New Zealand Competition Commission (NZCC) to authorize a merger, acquisition or contractual arrangement that otherwise substantially lessens competition in a market if the benefits to the public outweigh the detriments (the public benefit test). While economic efficiencies are a typical example of relevant benefits, the New Zealand courts have recognized benefits beyond economic efficiencies when assessing the public benefit test, including "environment, health or social welfare" benefits. The NZCC has previously considered benefits such as "reduced pollution or other environmental improvements" and detriments such as "adverse effects on the environment" in its assessment.

Exception to cartel prohibition: Section 31 of the Commerce Act provides an exception to the cartel prohibition for "collaborative activities" between competitors (such as joint ventures) that are not for the dominant purpose of lessening competition between the competitors, provided that any cartel provisions that are part of the collaboration are reasonably necessary for that legitimate purpose. The NZCC has considered that competitors' legitimate purposes for collaboration may include environmental, health and safety, or other social welfare purposes. It is important to note that this exception does not provide protection from the prohibition on arrangements that substantially lessen competition in a market (only from the cartel prohibition), but such arrangements can be authorized by the NZCC if the benefits to the public outweigh the detriments (as described above).

Recent cases: The NZCC has recognized sustainability benefits in several authorization decisions to date, for example, in Refrigerant License Trust Board and Nelson City Council and Tasman District Council. However, in Nelson City Council and Tasman District Council, the NZCC, while recognizing environmental benefits, did not consider these benefits to be determinative in its final decision. The NZCC noted in its December 2020 Sustainability and Competition submission to the OECD that "generally, these benefits were unable to be quantified and did not materially affect the NZCC's final determination." This demonstrates that it may be difficult to rely on environmental benefits alone to justify authorization where an arrangement has the effect of substantially lessening competition in a market (but the weighing of environmental benefits against competition detriments will always be fact-specific in any given case).

Support of renewable energy: The NZCC granted a revenue increase for electricity lines company Unison, helping it cover the US$7.3 million cost of connecting its local network to the Tauhara power plant. The grid will transport the renewable electricity generated to supply consumers.

In an open letter published in April 2021, the NZCC emphasized a significant change in the investment required in energy sectors and its support in increased electrification and transitioning to a low-carbon economy, as well as the need for regulation to accommodate the energy transition.

Environmental claims guidelines: The NZCC has published an Environmental Claims Guidelines document for traders to understand their obligations when making environmental claims or "green marketing." The guide includes specific criteria to follow such as substantiating any green claims made and being specific in the information provided to consumers.

In its 2022 Annual Report, published on February 7, 2023, the NZCC reported that it had issued warnings after investigations into environmental and sustainability claims by Glopac and Chilltainers. The warnings led to a change in their marketing, packaging and information approach. Representations as to recycling were made on hot drink cups (Glopac) and cardboard food packaging (Chilltainers), but the products could not be recycled in New Zealand in either situation.

Anti-Monopoly Law 2022: The Anti-Monopoly Law 2022 has come into force on August 1, 2022. Undertakings may benefit from an exemption to concluding horizontal agreements, RPM agreements and providing material assistance to the conclusion of such agreements by other undertakings if they can demonstrate that these are aimed at achieving energy savings, environmental protection, disaster relief and such other public interests. To qualify for an exemption under efficiency grounds, the applicant has to show that the agreement concluded will not seriously restrict competition in the relevant market and that it will enable consumers to share the resulting benefits. There are no available cases yet where an otherwise anti-competitive agreement was successfully defended on this basis.

Auto-industry guidelines 2019: New electric vehicle manufacturers benefit from an exemption for RPM agreements for an introductory period. SAMR suggested a promotional period of nine months, although the time limit is subject to adjustments based on actual industrial and technological developments.

ASIC enforcement: The Australian Securities & Investments Commission (ASIC) has warned businesses that it will continue targeting greenwashing this year, as part of a continuing focus on protecting consumers from financial harm.  From July 1, 2022 to March 31, 2023, ASIC intervention resulted in 

(i)    23 corrective disclosure outcomes

(ii)    11 infringement notices issued

(iii)    In one case, the commencement of civil penalty proceedings 

On 14 July 2023, The Australian Competition and Consumer Commission ("ACCC") published draft "greenwashing" guidelines which set out its views on good practice for businesses to ensure their environmental and sustainability claims are not misleading. The draft guidelines contain eight principles supported by examples to guide businesses as to what the ACCC views as acceptable or otherwise. Broadly, the examples indicate that the ACCC sees a need for greater specificity in environmental claims and will not tolerate broad brush statements or representations that are only partially true.

On  February 28, 2023, ASIC commenced its first court proceedings that alleged greenwashing conduct.  In civil penalty proceedings commenced in the Federal Court against Mercer Superannuation (Australia) Limited (Mercer), ASIC alleges Mercer made misleading statements about the sustainable nature and characteristics of some of its superannuation investment options. ASIC has published an information sheet providing guidance how to avoid greenwashing when offering or promoting sustainability-related products.

ACCC monitoring: The Australian Competition and Consumer Commission (ACCC) continued its focus on environmental claims and sustainability in its Compliance and Enforcement Priorities for 2023/2024. First introduced as a priority in 2022/2023, the ACCC broadened the scope of this priority from consumer and fair-trading issues to now include product safety and competition concerns.

In a speech announcing the 2023/2024 priorities, Chair of the ACCC Ms. Gina Cass-Gottlieb remarked that “misleading claims about environment or sustainability credentials have an impact right across the economy.” Announcing the establishment of a new ACCC internal taskforce focused on sustainability issues, Ms. Cass-Gottlieb noted that the ACCC’s role in the transition to a greener economy extends to competition issues. Changing industries and demand for new infrastructure create the potential restrictive behavior from incumbents, and the disruption that may impact the provision of products and services.

In March 2023, the ACCC published the findings of its 2022 internet sweep of environmental claims. The sweep reviewed 247 businesses and found 57 percent had made “concerning” environmental claims, including:

(i)    Using vague or unclear environmental claims

(ii)    Not providing sufficient evidence for their claims 

(iii)    Setting environmental goals without clear plans for how these will be achieved

(iv)    Using third-party certifications and symbols in a confusing way

The ACCC indicated that it will produce updated economy-wide guidance material for sustainability claims and targeted guidance for specific sectors.

In publishing its findings, the ACCC reissued its previous  public warning  for businesses to be prepared to substantiate their environmental claims, as false or misleading claims undermine consumer trust and confidence in the market. In a speech to the SMH Sustainability Summit on  September 20, 2022, ACCC Commissioner Ms. Rickard said that "the ACCC will not hesitate to take enforcement action where there are indications that consumers are being misled or deceived by green claims." In saying this, Ms. Rickard cited the prior US$125 million penalty against Volkswagen AG for false representations about compliance with Australian diesel emissions standards.

Treasury consultation: In December 2022, the Federal Treasury sought initial views on key considerations for the design and implementation of standardized, internationally aligned requirements for disclosure of climate-related financial risks and opportunities in Australia. Submissions are now closed and a specific design proposal for the new reporting requirements, their implementation and sequencing are expected later in 2023.

Authorization based on public benefit test: The ACCC administers an ex-ante approval procedure, whereby the ACCC may provide statutory protection from legal action against mergers or restrictive trade practices that may reduce competition if there is a net public benefit. Some sustainability initiatives have been considered to satisfy that test. Examples include initiatives whereby a levy was authorized for schemes that promoted recycling and environmentally conscious disposal, such as the Battery Stewardship Scheme, Tyre Stewardship Scheme, and a paint collection and disposal scheme.

The ACCC has also recognized the environmental benefit of the reduction of greenhouse gas emissions in its authorization of:

(i)    The Barwon Region Renewable Energy Project, a Western Australian Local Government Association energy group, and Equinix Australia, which in each case created joint renewable energy purchasing groups to pool electricity demand and jointly tender for Power Purchasing Agreements

(ii)    Collective bargaining for waste disposal in respect of a renewable organics network project

(iii)    Joint purchasers for a large-scale renewable wind energy project

More generally, the ACCC has considered environmental benefits when granting a number of recent authorizations to local councils for the collective tendering of recycling services (here and here) and e-waste collection. In November 2022, the ACCC allowed supermarkets to cooperate when pursuing sustainability goals. The supermarkets were allowed to be part of a soft plastic taskforce initially chaired by the country’s Department of Climate Change, Energy, the Environment and Water. This will allow the retailers to minimize landfill waste by meeting to develop and implement a short-term solution for storing, transporting, processing, recycling and managing soft plastics.