Another change is that as long as market players are able to compete on key parameters and therefore there is significant competition, there may be enough room for sustainability agreements, even in the market. In addition, sustainable development agreements do not need a quantitative assessment when the cumulative market share does not exceed 30% and the initiative is specifically focused on sustainable development goals. While there is sufficient competition in the market, it will be much easier for companies to cooperate because it is sufficient to show that it is reasonable to expect real benefits. While it is important for the assessment of market share, the Commission found in its guidelines on the application of Article 101 of the TFUE (point 109 to 110) that it was equally important to assess effective competition through more comprehensive qualitative and quantitative assessments. This becomes difficult in some cases if quantitative assessments are excluded. In addition, market shares may vary from region to region relative to the national market share of companies. The CMA`s assessment will vary accordingly, so uncertainties remain about the outcome. The CMA is the example of three waste collectors (common market share of 30%) the intention to conclude a cooperation agreement on waste collection in urban areas. This agreement would significantly distort competition under Article 101, paragraph 1, of the TFUE.
The CMA notes that due to the limited cumulative market share, a quantitative assessment is not required. The conditions set out in Article 101, paragraph 3 of the TFUE are considered to be met on the basis of objective advantages. B such as reducing emissions and benefits for affected residents, such as increased road safety. In this context, the CMA`s draft guidelines represent a positive development and a step forward in the ongoing debate on competition law and sustainability. It is true that they do not consent to agreements whose effects are felt outside the Netherlands. However, while other authorities are addressing these issues – including the European Commission as part of its consultation on horizontal guidelines – we hope that they will explicitly support companies cooperating to achieve the sustainable development goals. According to the draft directive, the core of Article 101, paragraph 3, of the TFUE is to give consumers an appropriate proportion of benefits (called “users” to capture indirect and end-consumers). Draft guidelines therefore require quantification of the benefits of sustainability, unless they are obvious or the agreement covers less than 30% of the market. This requirement does come down to a broad notion of sustainability, because in other words, a qualitative assessment of sustainability is no longer sufficient (apart from the two exceptions).
However, draft guidelines need to be quantified because they use willingness to pay as a measure of benefits to consumers. This is essentially in line with the guidelines of Article 101, paragraph 3, of the TFUE. Sustainable development agreements are not agreements, but they can nevertheless be seen as a will or an impact limitation. An agreement is a collusive agreement that seeks to undermine competition, often secretive, that could harm consumers; Sustainable development agreements have a different objective, legal and economic context. This objective may also prove objectively restrictive if it pursues an anti-competitive objective, but it is only if sustainability is a mere façade – greenwashing – that it can be considered a cartel (not a genuine sustainable development agreement). Nevertheless, draft guidelines strive to make a difference in terms of sustainability in terms of “lower competitive parameters.”