Europe

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.

Current position: Sustainable goals are high on the agenda for the European Commission (EC), as demonstrated by the Green Deal initiative—a roadmap for making the EU's economy sustainable by turning climate and environmental challenges into opportunities across all policy areas.

Antitrust rules: On June 1, 2023, the EC revised Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements (Horizontal Guidelines), which provide guidance on how to self-assess sustainability agreements under EU competition law. The Horizontal Guidelines use a broad definition of "sustainability" so as to include social objectives (e.g., labor and human rights) as well as environmental initiatives. The EC also takes a broad view of the "benefits" that are relevant to the competitive analysis, including: (i) individual use value (e.g., improved product quality or variety); (ii) individual non-use value (where consumers' use experience with the product is not directly improved, but consumers value the impact of their sustainable consumption on others); and (iii) collective benefits (where, irrespective of the consumer's individual appreciation of the product, objective benefits accrue to a larger group of which the consumer is part). The Horizontal Guidelines provide examples of four type of agreements that are unlikely to raise competition concerns. These examples are merely illustrative and non-exhaustive: (i) agreements that aim to comply with legally binding international agreements whether or not they have been implemented by national law; (ii) agreements that do not concern the economic activity of undertakings but their internal corporate conduct; (iii) agreements to set up a database containing general information about suppliers that have (un)sustainable value chains; and (iv) agreements between competitors relating to the organization of industry-wide awareness campaigns raising customers' "awareness of the environmental impact or other negative externalities of their consumption."

The Horizontal Guidelines also introduce a "soft safe harbor" for sustainability standards. A sustainability standardization agreement is unlikely to raise concerns where it secures transparency, open and non-discriminatory access, voluntary participation, freedom to adopt a higher standard and does not involve exchange of commercially sensitive information. At the same time, at least one of the following conditions should be satisfied: (i) the sustainability standard must not lead to a "significant" increase in price or "significant" reduction in quality of the products; or combined market share of the participants must not exceed 20 percent on any relevant market. Sustainability standardization agreements will raise competition concerns if they restrict competition by object or lead to "appreciable actual or likely negative effects on competition."

The Horizontal Guidelines encourage companies to rely on the EC's Informal Guidance to provide clarity on "novel or unresolved questions on individual sustainability agreements."

On January 10, 2023, the EC published draft guidelines on the application of a new EU antitrust exemption for sustainability agreements involving producers of agriculture products. Article 210a of the Regulation 1308/2013 exempts restrictions of competition in agreements in the agriculture sector that are indispensable to achieving sustainability standards higher than EU or national mandatory standards. The Regulation establishes a common organization of the markets in agricultural products and entered into effect in early 2022.
The draft guidelines complement the Horizontal Guidelines and describe in detail conditions under which agreements between actors in the agricultural and food chains can benefit from Article 210a’s exemption from Article 101 (1) TFEU’s prohibition of anti-competitive agreements. The draft guidelines discuss each aspect of the Article 210a exemption. These include the following: (i) scope of the exclusion specifying that the exemption applies to agreements including at least one agricultural producer as a party; (ii) eligible sustainability objectives and standards; (iii) the test to identify indispensable restrictions to competition; and (iv) the scope of the EC's and national competition authorities’ right to stop or require amendments to the sustainability agreement. The guidelines are expected to be adopted by December 8, 2023.

On May 10, 2022, the EC adopted the new guidelines on vertical restraints (Vertical Guidelines), which provide guidance on how to self-assess vertical agreements under EU competition law. The EC acknowledges the importance of sustainability in the new Vertical Guidelines, although the topic has not been as prominent as in the Draft Revised Guidelines. When assessing the qualitative criteria for distributors to be part of a selective distribution system, the Vertical Guidelines specify that sustainable objectives may be taken into account, including (i) climate change; (ii) environmental protection; and (iii) limiting the use of natural resources. Finally, the Vertical Guidelines make reference to the fact that non-compete clauses of a longer duration may be justified in order to offset the investment risk in a project aiming to produce sustainable products or services.

On November 8, 2022, the EC published for consultation the draft revised Market Definition Notice ("Notice"), which refers to sustainability considerations as factors to be taken into account when defining the boundaries of the relevant market. Paragraph 12 of the Notice states that "when defining the relevant market, the Commission takes into account the various parameters of competition [including] its level of innovation [and] its quality in various aspects—such as, for example, its durability [and] sustainability."

Working paper: The Autorité de la Concurrence (ADLC) contributed in 2020 to a working paper examining the role and tools of competition law in the face of climate change. This paper acknowledges that certain concerted practices aimed at sustainability goals may come into conflict with competition law. The paper indicates that the ADLC is keen to engage in EU-wide and international discussions, with a view to discovering the best way to move forward.

Priority issue: The ADLC has released its 2023 – 2024 roadmap, emphasizing its increased dedication to sustainable development. Alongside the continued imposition of sanctions against anticompetitive practices in this area, the ADLC may also contemplate issuing horizontal guidelines concerning sustainability agreements.

Sector-specific inquiry: In February 2023, the ADLC initiated an inquiry specific to the charging infrastructure for the electric vehicles sector. The purpose is to examine the competitive dynamics within the market for this environmentally friendly mode of transportation. This inquiry offers a platform for discussing how the competition landscape in this sector can be assessed in light of sustainable development principles. Additionally, in March 2023, the ADLC launched a public consultation as part of its inquiry into the land passenger transport sector. The aim is to determine whether the competitive conditions within the land passenger transport industry promote sustainable development and contribute to the reduction of greenhouse gas emissions.

New legislation: A new law combating climate change and strengthening resilience to its effects was introduced in August 2021. The ADLC may take this new legislation into consideration in its future assessments, and it thus could have an impact on competition.

Notice on fines: The ADLC published in July 2021 a revised procedural notice¹ on the method for determining the value of fines imposed on companies for anti-competitive practices. The non-exclusive list of factors, which may be taken into account when assessing the seriousness of such practices, now explicitly refers to the environment.

Decisional practice: The ADLC already takes sustainable development into consideration in its decisional practice. For instance, in its decision 17-D-20, the ADLC imposed sanctions in a cartel case involving a non-competition agreement relating to environmental communication. Several floor-covering manufacturers signed a charter barring each company from advertising the individual environmental performance of its products. Manufacturers were permitted only to communicate on the environmental performance of their product through joint data sheets produced by a trade association. Such agreement eliminated "competitive marketing practices based on environmental characteristics," leading to the adoption of a consistent marketing approach to prevent "reckless green marketing."

_{1 Available in French.}

Merger guidelines: Environmental sustainability has been flagged as a relevant customer benefit in the Competition & Markets Authority (CMA) Merger Assessment Guidelines published in March 2021. The CMA also specifically mentioned helping to accelerate the UK's transition to a net-zero economy as one of its priorities in its 2023/2024 Annual Plan.

Antitrust rules: In January 2021, the CMA published an information sheet on environmental sustainability agreements as a guide to businesses navigating competition law concerns. However, this introduced no additional guidance beyond the existing rules for "green" cooperation. More recently, the CMA published guidance on the Vertical Agreements Block Exemption Order (VABEO), which entered into force on June 1, 2022 and replaced the retained EU framework for vertical agreements. The guidance noted that, for direction on the assessment of a "fair share" of consumer benefits in the context of sustainability agreements, reference should be made to the CMA's 2022 advice to the government (discussed below), as well as any subsequent publications. As for horizontal guidance, the CMA’s consultation on horizontal guidance on the application of the chapter closed in March 2023. The draft guidance that was the subject of that consultation includes a standalone section on environmental sustainability.

Proposals for reform: In July 2021, the UK government published a consultation on a major proposed reform to competition and consumer policy, and requested that the CMA produce advice to the government on how the competition and consumer regimes could better support the UK's net-zero and environmental sustainability goals (including climate adaptation). In March 2022, following a public consultation, the CMA published its advice to the government. While the CMA deemed that there was no sufficient evidence to conclude that competition law was an obstacle to sustainability, it stated that greater legal clarity, and greater consistency and co-ordination across sectors and regulators, would help bolster companies' confidence when pursuing sustainability initiatives. In February 2023, the CMA published draft guidance on sustainability agreements to provide greater clarity and certainty in this area.The guidance addresses (i) when sustainability agreements will not restrict competition under Chapter 1 of the Competition Act 1998 (CA98); (ii) the concept and measurement of "benefits" in a sustainability context (under section 9 of the CA98); and (iii) the issue of what constitutes a "fair share" of consumer benefits for the purposes of benefiting from an exemption. The guidance includes examples of environmental sustainability agreements which (i) are unlikely to infringe the Chapter I prohibition; (ii) could infringe the Chapter 1 prohibition; and (iii) those that can benefit from an exemption. As part of its more flexible approach to accommodate environmental benefits brought about by agreements that restrict competition, the CMA will not take enforcement action against agreements that clearly correspond to examples set out in the guidance.

Sustainability Taskforce: The CMA’s March 2022 advice to the government announced the launch of an in-house Sustainability Taskforce to develop formal guidance (in particular on the CA98), to lead discussions with government, industry and partner organizations, to review continually the need for legislative change, and to "shed a light on what business can and cannot do under current competition and consumer laws." The Taskforce will play a role in ensuring that the UK economy "not only serves the interests of consumers but also delivers on its environmental responsibilities."

Market studies: In July 2021, the CMA completed its market study into electric vehicle charging, the purpose of which was to promote change in a market that is important for the transition to low-carbon growth. The market study was followed by a CMA investigation into long-term exclusive arrangements for the supply of electric vehicle charge points on or near motorways. The CMA has committed to launching at least one new market study in a net-zero-relevant market in the 2022/23 financial year.

Greenwashing investigations: The CMA has launched two investigations into products and services marketed as "eco-friendly" to determine whether customers are being misled. In July 2022, the CMA launched an investigation into environmental claims made by ASOS, Boohoo and George at ASDA that potentially breach consumer protection law. The CMA is interested in whether broad and vague statements used to sell products create the impression that such products are more sustainable than they actually are, and the lack of clarity in the criteria used to decide which products should be included in "sustainable" clothing collections. In January 2023, the CMA launched an investigation into the accuracy of "green" claims made in the fast-moving consumer goods sector about household essentials, such as food, drink and toiletries.

Informal guidance: The CMA has stated that it continues to operate an open-door policy whereby businesses that are considering entering into environmental sustainability agreements are encouraged to approach it for informal guidance.

Collaboration: The CMA will continue collaborating with international competition agencies on sustainability.

Guidelines: The Autoriteit Consument & Markt (ACM) has published draft guidelines on sustainability agreements, which form the most detailed and practical contribution to integrating sustainability in competition law. These are now in the form of a second draft, after collaborative feedback on the first draft led to a refinement of the draft provisions. Inter alia, the ACM draft guidelines propose to widen the competition law assessment for what the guidelines call "environmental-damage agreements" (i.e., agreements concerning the reduction of negative externalities, and, as a result thereof, a more efficient use of natural resources). If (i) an agreement is an environmental-damage agreement and (ii) it helps, in an efficient manner, to comply with an international or national standard, or it helps realize a concrete policy goal (to prevent such damage), the ACM believes that users do not need to be compensated in full because it could be sufficient to consider broader benefits for society as a whole. Also, the ACM envisages defining the types of cases for which there is no need to quantify the positive effects of an agreement.

Up until May 2023, the ACM had assessed five sustainability initiatives using the draft guidelines: the first relating to the joint purchase of electricity from a wind farm by businesses and organizations; the second concerning the agreement of grid operators to the use of a uniform price for CO² in calculation models for grid investments; the third relating to the collaboration in the storage of CO² in empty natural-gas fields in the North Sea; the fourth  concerning arrangements between soft drink suppliers to discontinue the use of plastic handles; and the last one focusing on arrangements of garden centers to curtail the use of illegal pesticides. The ACM found that it had no objection to these initiatives, stating that they helped make the relevant sectors more sustainable, while not being at odds with competition rules.

Technical report: The ACM has co-authored a technical report on competition and sustainability with the Greek competition authority. The report tackles the main concepts of welfare economics and relevant externalities, and seeks to quantify sustainability as part of the total economic value.

Antitrust rules: As part of the draft guidelines, the ACM has proposed a safe harbor for all pure sustainability agreements and for some "good faith" joint agreements. The chair of the ACM, Martijn Snoep, stated that he intended the guidelines to be "the start of a discussion" with other EU countries.

Farmers guidelines: In September 2022, the ACM published Guidelines regarding collaborations between farmers, which outline different opportunities available to the agricultural sector that are allowed under the competition rules.

The ACM stated that it would prioritize sustainability in 2023. In particular, it will focus on preventing consumers from being misled by vague and misleading information on the sustainability aspects of goods or services. It calls on the Dutch legislature to introduce better certification and labeling rules. It would also help firms that wish to collaborate in order to realize certain sustainability goals stay within the statutory parameters.
 

Technical report: In January 2021, the Hellenic Competition Commission (HCC) co-authored a technical report on competition and sustainability with the Dutch competition authority. The report tackles the main concepts of welfare economics and relevant externalities and seeks to quantify sustainability as part of the total economic value.

Antitrust rules: The new article 37A of law 3959/2011 provides that the President of the HCC may issue a no-action letter against a horizontal or vertical agreement for violation of article 1 of law 3959/2011 and Article 101 TFEU or against a practice for violation of article 2 of law 3959/2011 and Article 102 TFEU, on grounds of public interest, such as sustainability goals. No-action letters related to sustainability goals are now issued through the sandbox process (please see under Sustainability sandbox below), but do not bind the HCC or the courts.

Draft Staff Discussion Paper on sustainability issues and competition law: In September 2020, the HCC published a Staff Discussion Paper, in which it analyses convergence areas and conflicts between sustainable development and competition law in all its aspects. The paper highlights the parameters of sustainable development that can be promoted: (i) without proceeding with any changes with regard to competition law enforcement; (ii) by following a smooth adaptation of the notion of sustainable development followed by specific suggestions; or (iii) by adopting an innovative approach or even an adjustment of the established theories of harm. For the purposes of launching the public consultation on the issues analyzed in the paper, the HCC organized a digital conference on "sustainable development and competition law."

Sector inquiry: The HCC has also conducted a sector inquiry into waste management and recycling, which led the authority to invite comments from the public. A final report was expected to be published in December 2022, but has not been published yet. One of the goals of this sector inquiry is to assess the extent to which specific practices can be justified by effectiveness and public interest objectives, such as sustainable development, and how this can be justified on the basis of different instruments of competition law.

Sustainability sandbox: In July 2021, the HCC launched a public consultation on its proposal to create a regulatory sandbox, in order to encourage and allow companies to undertake sustainability initiatives without the fear of breaching competition rules. The intended purpose of the sandbox is to attract innovative business solutions that will enhance sustainability while eliminating practices that could harm competition (e.g., "greenwashing" practices). Following the positive feedback to the public consultation, the HCC launched the sandbox in October 2022, in accordance with the new article 37A of law 3959/2011. The sandbox is a supervised environment where the HCC, following an application and the evaluation of a business proposal, assesses and approves sustainability initiates from the perspective of both competition law and sustainable development, "with the aim to strengthen legal certainty for undertakings and reduce the regulatory risk for investments in line with the broader public interest objectives for sustainable development." In its Decision No. 789/2022, the HCC sets out the criteria and conditions for the issuance of the no-action letter under article 37A of Law 3959/2011 and determines other relevant matters relating to the implementation of this provision. No application has been submitted yet to the sustainability sandbox (last update in June 2023).

Next steps: The HCC envisages issuing guidelines providing the conditions under which the private sector may proceed with collaborations in order to promote sustainability. In addition, the HCC aims to adopt, following a public consultation, a package of measures in order to implement its sustainability goals more efficiently and in cooperation with the European Commission.

General position of the competition authority: The Bundeskartellamt (BKartA) published a note for the OECD Paper on Sustainability and Competition Law acknowledging that there may be times when competition law and sustainability come into conflict, although this should not generally be the case. The BKartA stated that "it is primarily the task of the democratically elected lawmaker to strike a balance between the opposing interests." The president of the BKartA, Andreas Mundt, positioned himself quite clearly publicly in 2021—he is "not very happy" about the debate to implement more public interest considerations (including sustainability) in competition law, because public and political interests may change quite quickly. He reiterated his concerns during an interview in May 2023, emphasizing that competition law becomes "very politicized," where sustainability is interpreted too broadly, i.e., not only relating to environmental issues, but also broader topics like social and governance issues. In the published BKartA annual report 2021/2022, president Mundt emphasized, however, that antitrust law does not stand in the way of cooperations to achieve sustainability goals —sustainability and competition law rather go "hand in hand."

The German Federal Ministry for Economic Affairs and Climate Action announced in September 2022 that a 12th amendment of the German Act against Restraints of Competition shall be expected in this legislative period that will focus on sustainability initiatives. The Ministry also commissioned a study on "Competition and Sustainability in Germany and the EU," which was published in March 2023 and assesses how antitrust law affects achieving sustainability goals and what options for developments there are.

Background paper: In the BKartA's background paper on public interest objectives in competition law, the regulator acknowledged the work completed by other competition authorities and recognized that "the issue of a more sustainable use of the resources available to us is moving to the center of the debate on competition policy." The contribution of the Dutch competition authority was brought into particular focus in the BKartA's background paper.

Guidance/Merger cases: The BKartA has so far largely given only specific individual guidance to businesses related to competitor cooperation, rather than issuing more general overarching guidance (2020/2021 annual report). The more recent 2021/2022 annual report now provides some limited guidance regarding the factors that the BKartA has taken into account in its previous decisions, such as the question whether the sustainability criteria have been developed in an open process, whether there is sufficient transparency for consumers, or whether access to the cooperation is non-discriminatory.

In 2019, the German Federal Minister of Economic Affairs overruled the BKartA's prohibition of a joint venture between Miba AG and Zollern GmbH & Co KG concerning the market of plain bearings by way of a ministerial authorisation. The minister found that public interests, such as safeguarding knowhow and innovation, outweighed competitive concerns, and that the deal contributed to energy transition and thus the achievement of environmental policy goals. In January 2022, the BKartA assessed an initiative to introduce fair wages in the banana sector and, separately, plans to expand the animal welfare initiative, "Initiative Tierwohl," finding that these were compatible with competition law, in particular their proposed pricing and financing models. At that time, the BKartA encouraged "Initiative Tierwohl" to gradually introduce more competitive elements going forward, upon concern by the BKartA, the initiative indeed decided in May 2023 to replace the standard premium with a recommended premium. The BKartA emphasized that the initiative is now well established and thus "a standard premium for animal welfare does not appear indispensable for implementing the initiative and observing animal welfare criteria." In respect of the banana sector initiative, there are plans to agree to voluntary common standards and strategic goals in order to introduce responsible procurement practices and develop processes to monitor transparent wages. Importantly, no competitively sensitive information will be exchanged, nor are compulsory minimum prices or surcharges to be introduced. In March 2022, the BKartA assessed and did not have any material competition concerns related to an initiative to increase animal welfare in the milk sector (the QM+ program). The initiative aims to introduce a label for products that meet certain animal welfare criteria and finance the additional costs via an "animal welfare surcharge" to be paid by food retailers. Participating in the QM+ program is voluntary.

By contrast, in January 2022, the BKartA found that another sustainability initiative in the milk sector amounted to a price-fixing agreement that did not ultimately pursue sustainability goals and infringed competition law.
 

Antitrust rules: On September 10, 2021, the Austrian Cartel and Competition Law Amendment Act 2021 (KaWeRÄG 2021) came into force, which includes the aim of increasing sustainability initiatives. Austria is amongthe first countries to formally address sustainability considerations in its legislation. In particular, the KaWeRÄG 2021 introduces the following wording (sustainability exception) to the exemption clause (Section 2, paragraph 1 KaWeRÄG 2021, reflecting Article 101(3) TFEU): "Consumers shall also be considered to be allowed a fair share of the resulting benefit if the improvement of the production or distribution of goods or the promotion of technical or economic progress contributes to an ecologically sustainable or climate-neutral economy."

Guidance: In September 2022, the Federal Competition Authority (BWB) published its sustainability cooperation guidelines. The guidelines aim to provide more legal certainty for companies that envisage entering into cooperations and cover, inter alia, guidance on (i) the scope for application of the sustainability exception; (ii) the parameters companies have to demonstrate and prove with regard to the efficiencies brought about by the cooperation and the indispensability of the restriction of competition; and (iii) the relevance to demonstrate that the efficiencies brought about are substantial (including in certain cases to quantify qualitative efficiencies).

The BWB acknowledges that it is currently a challenge to provide practical examples regarding the various aspects of the newly incorporated sustainability exception and plans to make the guidelines a "living document" that will be updated in the future. The BWB explicitly encourages companies to reach out early on to discuss potential competition law implications of an envisaged initiative.

• In its 2023 – 2025 work program, the Swedish Competition Authority (SCA) mentions sustainable development as a particular strategic focus area for 2021 through 2023. The SCA also notes that sustainability will continue to have a strategic impact on its activity in the coming years. The strategic focus mainly concerns knowledge development and there is no mention of sustainability in, for instance, the SCA's enforcement priority policy.
• In relation to the focus area, the SCA will specifically study competition in relation to charging infrastructure. Furthermore, the SCA hosted a conference in 2022 on the theme of sustainability considerations, (see here for more information).
• The SCA will likely follow the approach of the European Commission on sustainability and competition law. In April 2020, the SCA submitted a written opinion in response to the European Commission's Green Deal consultation. The SCA did not reject the view that sustainability can play a role in the assessment of restrictions of competition but indicated that consideration to sustainability should be aligned with the principal aim of competition law, namely, to protect consumer welfare. The SCA held that the European Commission is best suited to provide further guidance on sustainability and competition law.

Guidance: The competition authorities of the Nordic countries published a joint report in 2010. The report underlines the importance of competition in achieving environmental goals in a cost-effective way, and advocates for market-based approaches such as pricing emissions in environmental policy. Exemptions for proportionate and clear environmental benefits are possible.

• In its 2022 Competition Council's report, the Danish Competition and Consumer Authority (DCCA) highlights sustainability and climate change mitigation as a focus area. The report indicates that the DCCA views sustainability as a possible (and increasingly so) parameter of competition.
• In its assessment of SEAS-NVE's acquisition of the Danish power company Ørsted, the DCCA considered sustainability arguments in its market definition of retail sales of power and natural gas. The DCCA concluded that consumers viewed power and natural gas sold by different suppliers as differentiated products; for example, one supplier positioned itself as a particularly green brand. (Competition Council's decision of June 24, 2020, "SEAS-NVE's køb af Ørsted selskaber").
• In September 2022, the DCCA published guidelines to help the public make more "green purchases" through public procurements. This might contribute to increasing the competitive relevance of sustainability.

Guidance: The competition authorities of the Nordic countries published a joint report in 2010. The report underlines the importance of competition in achieving environmental goals in a cost-effective way, and advocates for market-based approaches such as pricing emissions in environmental policy. Exemptions for proportionate and clear environmental benefits are possible.

Sustainability agreements were flagged as a relevant topic for competition and consumer policy during Finland’s Presidency of the Council of the EU in 2019. The Finnish Competition Authority has not issued any specific guidance yet.

Guidance: The competition authorities of the Nordic countries published a joint report in 2010. The report underlines the importance of competition in achieving environmental goals in a cost-effective way, and advocates for market-based approaches such as pricing emissions in environmental policy. Exemptions for proportionate and clear environmental benefits are possible.

New measures: Already in 2021, the Italian government presented the National Recovery and Resilience Plan to the Italian Parliament, which takes into account the Italian Competition Authority's (ICA) proposals for "putting competition at the service of environmental sustainability." The plan includes reforms of Italian antitrust rules affecting the issue of sustainability. These include: the proposed centralization of public procurement for hydroelectric power stations in order to increase transparency and ensure the broadest participation; new rules to boost competition in the waste management and renewable energy sectors; and new transparent and non-discriminatory criteria for the selection of operators installing charging points for electric vehicles (implemented by the 2021 Annual Competition Law (2021 ACL), see below).

On August 5, 2022, the Italian Parliament adopted the 2021 ACL, which entered into force on August 27, 2022 and introduced new rules on energy and environmental sustainability. For example, it requires motorway concessionaires to select the operator who requests to install electric charging stations through competitive, transparent and non-discriminatory procedures, in compliance with a rotation principle while rewarding operators who propose to use highly innovative technologies (Article 12). Moreover, fuel distribution plants are required to regularly update their official register entry subject to administrative fines in case of non-compliance (Article 13).

On April 20, 2023, the Italian government adopted the 2022 Annual Competition Law (2022 ACL or the "Law") with entry into force expected by December 2023. The 2022 ACL proposes changes to the regulations concerning the development plans of the electricity transmission network and the efficiency of the gas distribution network. One significant change is the identification of a "major gas transmission company," as the undertaking responsible for developing ten-year network development plans. The Law also aims to promote the use of "smart meters" and imposes obligations on electricity and gas distribution companies. Customers will have the option to request that the data collected from their electricity and gas meters can be shared with third parties for price comparison purposes.

The Regulatory Authority for Energy, Networks, and Environment will set heating prices. The Law also introduces new provisions to support greener ports. In particular, the text introduces the definition of "cold ironing infrastructure" as a system of land infrastructure to supply electricity to docked ships, a service now determined to be of general economic interest (and therefore subsidized through discounts on tariffs).

Recent cases: The ICA has been monitoring commercial communications concerning green claims and has fined companies for misleading advertising messages linked to sustainability. Importantly, in November 2021, an Italian court issued the first precautionary order in relation to greenwashing. The Tribunale di Gorizia accepted the appeal lodged against a company that markets a microfiber with a similar appearance to chamois used in the furniture, fashion and automotive sectors, and acknowledged, with reference to Art. 12 of the Codice di autodisciplina della comunicazione commerciale that the expressions "natural choice," "friend of the environment," "the first and only microfiber that guarantees eco-sustainability throughout the production cycle" and "ecological microfiber" amounted to misleading advertising.

Consumer protection: On March 31, 2022, the ICA published its Annual Report for 2021 where it found that when analysing the relationship between competition and sustainability, greater sensibilization of consumers and businesses with regard to "green washing" is needed. In fact, the Annual Report for 2021 is also the first time that the ICA relates the concept of greenwashing with unfair competition.

The ICA Annual Report for 2021 also referred to the fact that the ICA exercised its power of moral suasion with regard to an airline, the advertising campaign of which used claims such as "zero-carbon flights […] offsetting emissions from the fuel used in all of our flights" and "travel responsibly – fly offsetting CO² emissions." Consequently, the airline changed the text of some pages of its website, thereby describing its commitment to the environment more correctly.

Priority issue: One of the main elements of the Comisión Nacional de los Mercados y la Competencia's (CNMC) 2023 Action Plan is the contribution to the achievement of 17 Sustainable Development Goals (SDGs) of the 2030 Agenda. In the 2023 Action Plan, the CNMC states that its actions will align with the SDGs through the preparation of studies related to areas and sectors particularly relevant to the transition to a more efficient and sustainable economy, such as packaging waste and electric vehicles. In its blog post, published by the CNMC in October 2020 ("The debate is served: competition policy and sustainability"), the CNMC found that with regard to SDG 7 ("affordable and clean energy"), competition also plays a key role. The CNMC's Strategic Plan 2021 – 2026 focuses on, inter alia, digitalization, sustainability and innovative markets.

Contribution to EU debate: The CNMC has released a response to a European Commission consultation on how competition rules can better support the Green Deal, in which it expressed the view that competition policy can play an active role in promoting sustainability, provided that greater legal certainty and predictability of EU competition law is adopted.

General approach of the Polish competition authority: No formal guidelines on sustainability have been adopted in Poland to date. The Polish Office of Competition and Consumer Protection (the UOKiK) has never commented on how sustainability considerations could influence its assessment. Nor has it addressed the issue in its decisional practice.

The UOKiK has initiated several investigations concerning cooperation between waste removal companies. In 2021, it conducted its investigation into the waste market on the suspicion of bid rigging. The UOKiK also conducted waste market surveys in 2019 and 2020, when it analyzed whether waste collection fees might have increased based on anticompetitive behavior (see the 2019 and 2020 press releases). The investigations and surveys conducted did not reveal any anticompetitive practices, but the UOKiK recognized the problem of increasing fees for waste collection and formulated some policy recommendations aimed at improving market performance, some of which appear to be driven by environmental considerations. This included more pro-actively supervising the industry, further investment in increasing the potential for managing combustible fractions stored in warehouses, establishing a new packaging waste management system and increasing the scale of industry-financed recycling, as well as introducing measures to separate waste at the source and a deposit-return system.

In 2009, the UOKiK prohibited a horizontal (two-to-one) merger in the national market for battery recycling. The UOKiK dismissed the parties' environmental defense because environmental benefits were not sufficiently established and, in any event, they did not counterweigh the merger's negative effects (see the contribution of Poland to the OECD paper on Horizontal Agreements in the Environmental Context). While the UOKiK’s recent decisional practice in merger cases does not explicitly confirm the agency's increasing interest in sustainability goals, some statements indicate that the UOKiK recognized environmental benefits generated by certain transactions. For example, in its 2021 press release relating to the merger clearance decisions concerning the construction of wind farms at the Baltic Sea, the UOKiK commented that: "[t]he use of the Polish maritime zone for energy production is extremely important from the point of view of the interests of Polish consumers and entrepreneurs and contributes to the protection of the environment." (See the press release)

Nonetheless, it does not appear that the ESG objectives will become a criterion used by the UOKiK in the assessment of deals or market conduct in the near future. Notably, in the context of merger control, a recent judgment by the Court of Competition and Consumer Protection confirmed that the UOKiK's merger control reviews must concern exclusively competitive consequences of the transaction and that the UOKiK is not competent to assess the transaction based on non-competition considerations.

In the context of various legislative proposals, the UOKiK has indicated that it views the competitive process as important to promote sustainability and environmental protection goals (see the contribution of Poland to the OECD paper on Horizontal Agreements in the Environmental Context). For instance, the UOKiK opposed the key element of the proposed reform to give a monopoly over waste removal to municipalities. Instead, it has advocated for maintaining private competition in that market. The UOKiK, however, agreed to tighten the rules regarding control over the flow of collected waste and the organization of the waste treatment system by municipalities in their regions, finding that these proposals were "necessary for achieving the environmental goals and their benefits will outweigh the damage to competition."

The UOKiK has also been actively advocating for better enforcement of the "right to repair," especially among manufacturers of household appliances. Within its jurisdiction related to protection of collective consumer rights, the UOKiK has been particularly active in combating greenwashing practices among undertakings operating in cosmetics, clothing and e-commerce sectors.

Guidance: The competition authorities of the Nordic countries published a joint report in 2010. The report underlines the importance of competition in achieving environmental goals in a cost-effective way, and advocates for market-based approaches such as pricing emissions in environmental policy. Exemptions for proportionate and clear environmental benefits are possible.

Guidance: The competition authorities of the Nordic countries published a joint report in 2010. The report underlines the importance of competition in achieving environmental goals in a cost-effective way, and advocates for market-based approaches such as pricing emissions in environmental policy. Exemptions for proportionate and clear environmental benefits are possible.