Most Read Contributor in Netherlands, January 2017
Companies are not always sure how much leeway they have under
the competition rules to cooperate on sustainability issues.
Following the Minister of Economic Affairs' new policy rule on
sustainability and competition, the ACM has published a decision
tree to help companies assess whether their sustainability
initiatives are competition-proof. The ACM has also indicated that
it will not usually act against widely supported sustainability
initiatives if all the parties involved, including government,
citizen representatives and companies, favour the initiative.
Companies seeking to cooperate on sustainability should therefore
use the decision tree as guidance when they do an initial
competition law check on their sustainability initiatives.
The Minister of Economic Affairs published the new policy
rule in October 2016. The ACM recently followed by publishing
decision tree. The decision tree, together with the policy
rule, clarifies that the following factors are relevant in
assessing sustainability initiatives under the competition
the short-term and long-term benefits of the initiative;
whether a fair share of the resulting qualitative or
quantitative benefits, in the short or the long-term, end up with
whether all the restrictions resulting from the initiative are
essential to attaining the initiative's objectives; this
includes consideration of any possible first-mover disadvantages a
company would face when setting up the initiative by itself;
whether sufficient room is left for companies to compete on
parameters unrelated to the initiative.
The policy rule is the first of three measures the Minister
intends to take in response to the public's call for more
leeway in sustainability cooperation after the ACM blocked a number
of sustainability agreements. Examples of the ACM's approach
can be found in its informal opinions on the closure of
coal power plants and the promotion of animal welfare with
chicken meat sold in supermarkets. The second measure that the
Minister is planning to introduce is a bill to regulate
sustainability initiatives. Finally, as a third measure, the
Minister will continue discussions at the EU level aimed at
clarifying the possibility of sustainability initiatives under the
EU's regulatory framework.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Any person who claims to be the victim of anti-competitive practices and wishes to seek compensation for the prejudice they consider to have suffered must prove before the civil courts that the three conditions of third party liability under general laws –negligence, competitive harm, and direct causal link– have been met.
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