ag2030, causes violations of ELP, CLP….. how?:
-restriccion de libertades [eg vuelos nacionales de corta distancia]
-causa perdida de productividad economica
-el plan hidrologico [que implementa la ag2030]….destruye el campo, agricultura, pesca, ganaderia… pp [ayuso] presento hace dias una querella contra el gob , contra el plan hidrologico,….este plan da grandes fondos a la rica empresa: canal isabel ii, y el rio tajo , y otros rios, estan siendo ensuciados por este nuevo plan….Vox dice que , aunque pp tiene razon en esta querella…..pero…porque sigue el pp apoyando la ag2030 ?
the 2030 agenda wants firms to collaborate , not compete. Examples:
- Supermarkets developing systems to increase recycling;
Suppliers looking to reduce their use of plastics / packaging; or
Suppliers and retailers looking to make fishing more sustainable - Agreements to reduce car emissions
Attempts to encourage more sustainable chicken production
Agreements to increase the collection of plastic waste
in the many cases they have either been:
– rejected (e.g. “Chicken of Tomorrow” ; fishing depletion restrictions, recycling restrictions etc
– not pursued, for fear of committing anticomps
One may see competition policies as at odds with sust, because usually bring overconsumption of limited environmental resources. Competition policies, however, also aim at improving quality (including sust quality),and increasing choice (including choice of more sust.products), and stimulating innovation (including green innovation)...Competition can play an important role in fighting climate change in at least three situations. ...To the extent that investing in sust, can bring a competitive advantage, competition is a sust. driver
eu: Article 101(1) prohibits anti-competitive agreements and Article 101(3) provides exemptions
CJEU interprets the law sothat clp attacks sustainability….maybe cjeu is wrong, because sustainability should aid clp
how ? five (overlapping) possible grounds for sustainability to aid clp :
(1) Some agreements are unlikely to restrict competition at all;
(2) Take the view that sustainability agreements essentially fall outside Article 101(1) completely
(the “Albany” route);
(3) See sustainability agreements as falling within the ancillary restraints / objective necessity
doctrine (a less radical version of (2));
(4) Some sustainability agreements fall within Article 101(3) (generally my preferred route);
(5) Make more use of the more generous treatment of standardisation agreements (essentially a
variant on (1) and (4) above)
1/ Agreements that do not Restrict Competition:
For example, ec’s 2001 Horizontal Guidelines : an environmental agreement is unlikely to restrict competition if:
a) it does not place any individual obligation on the parties, or if parties only commit loosely to
contributing to a sector-wide environmental target,
b) the agreement stipulates environmental performance with no effect on product and
production diversity, or
c) it gives rise to genuine market creation
ec: sustainability agreements outside Article 101(1): egs:
– the JAMA and KAMA agreements [on emission reductions among car producers with no obligation as to the methods of achieving it…. there are thousands of sustainability agreements which have been
self-assessed as not falling within Article 101(1)
2. The “Albany” Route: In the Albany case: The ECJ held: agreements of collective negotiations between management and labour to improve work conditions, fall outside the scope of Article 101(1) of the Treaty”….Exactly the same reasoning could be applied to sustainability agreements [ for agreements that do not meet the four conditions of Article 101(3)), the Albany judgment potentially provides a clear way of finding a sustainability agreement to fall outside Article 101(1)]
3. The Ancillary Restraints / Objective Necessity Route
There have been a number of cases over the years where the Ec and ecj found a variety of agreements to fall outside Article 101(1) completely…The application of these doctrines to environmental agreements has not yet been tested in
the courts
The Exemption Route: Article 101(3): Unless it is clear that a sustainability agreement does not fall within Article 101(1) then, the most obvious way for the agreem. to escape the prohibition is for it to be exempted under
Article 101(3)
Article 101(3) : for an agreement to be exempt, it must meet each of four conditions:
CONDITION 1:
The agreement must: “contribute to improving the production or distribution of goods or to promoting technical or
economic progress”….. Four comments:
i) Again, there is no reference to “consumer welfare”;
ii) “Economic” progress is only one of four ways in which an agreement may meet this condition
iii) Even if one focuses just on the “economic” criterion, many sustainability agreements will fall
within this. For example, is it not “economic” progress if an agreement leads to the production
of an engine that costs €1,000 with half the emissions of its predecessor which also cost
€1,000? In my view, yes – and it is not necessary to establish that, but for the agreement, the
less polluting engine would have cost €2,000 (in any case, this is clearly ‘technical’ progress).
iv) There is no reference here to “pro-competitive effects”. Many say that Article 101(3) allows the balancing between the “pro-competitive effects” against the “anti-competitive effects” under Article 101(1).
but this is misleading……my opinion: environmental benefits fall within the first condition
CONDITION 2:
for an agreement to be exempt [under Article 101(3)], must allow “consumers a fair share of the resulting benefits”.
This invites two questions: who are the relevant ‘consumers’ for this purpose? And, what is a ‘fair
share of the resulting benefit’?
consumers have wider interests than their financial ones(more choice at lower prices)<> the constitutional requirement that “environmental protection requirements must be integrated in [all] the Union policies and activities” (Article 11)
Thus, consumers should be interepreted here as all citizens….eg: CECED decision : the “environmental results for society
allow consumers a fair share of the benefits, even if no [economic] benefits accrued to individual purchasers”.
May future consumers can be taken into account? Happily, the Commission’s 2004 Exemption Guidelines , say yes. (but with some discounting for the fact that these benefits are in the future)
Whether consumers outside the EU can also be taken into account … probably not. That said, the benefits of many environmental agreements will not be limited to a particular geographic area
(B) what constitutes a “fair share of the resulting benefit”?
(i) First, The condition does not suggest that consumers must
benefit from a lower or fair price. …but a “fair share of the resulting benefit”…is a flexible concept capable of taking into sustainability concerns.
(ii) even when an agreement results in increased prices for consumers (paragraph 104 ec guidelines).
(iii) environmental qualities of a product are parameters of competition. For example, the Commission is investigating whether 5 German manufacturers colluded “not to improve their products, not to compete on quality” by limiting
the “development and roll-out of emission cleaning technologies…thus, denied consumers the opportunity to buy less polluting cars”…..thus, environmental improvements benefit consumers
(iv) environmental protection and sustainable development are clear benefits for the Union (and therefore for consumers) and it “only” remains to be assessed whether these benefits exceed the
harm from the anti-competitive effect of the agreement (the “balancing” or “proportionality” principle).
CONDITION 3: Article 101(3) : restrictions in an agreement should be no more restrictive
than necessary. proportionality principle
CONDITION 4: No Elimination of Competition
The final condition for exemption of an agreement is that there must be no elimination of competition
5. The Standardisation Approach
one way in which more sustainability agreements might escape the prohibition of Article 101 (or do so more easily) might be to frame them as standardisation agreements…There is no specific regulation or exemption for standardisation agreements, and they would either need to fall outside Article 101(1), or meet the exemption conditions of Article 101(3), to escape the prohibition of Article 101……For example, many of the animal welfare objectives might have beeachieved in the “Chicken of Tomorrow” case if the arrangements had been framed as a standardisation agreement
ABUSE OF DOMINANT POSITION [ADP]
There are circumstances where it may be possible to use Article 102 :
– as a ‘sword’, to attack unsustainable adp practices/uas
-as a ‘shield’, to protect sustainable adp practices/uas
A. Article 102 as a “sword”:
Article 102(a) which prohibits adp
adp types, [Article 102] , are not fixed…thus, we can add new adp unsustainable types: eg. the low prices paid by some retailers (or other intermediaries) to farmers. There is, of course, an environmental aspect, becos such low prices encourage an excessive use of scarce resources and bad land practices….Also… can a price be “fair”, if a farmer cannot afford to feed his/her children?
Article 39 TFEU : one of the key objectives of the Common Agricultural Policy (“CAP”) is to “ensure a fair standard of living for the agricultural community” and that “supplies reach consumers at reasonable prices”
Article 42 TFEU: clp only apply if it respects art.39 tfeu.
B. Article 102 as a “shield”:
Article 102 could also be used as a “shield” to protect sustainable adp uas…where there is no way of achieving the sustainability, in a way that is less restrictive of competition)…egs:
(i) charging a higher price in order to cover environmental costs or re-invest in environmental
protection: i.e. as a defence to allegations of excessive pricing;
(ii) charging different customers different prices according to the use to which the product is put
– eg how environmentally friendly it is (e.g. the energy efficiency of the downstream
production process); i.e. as a defence to allegations of discriminatory pricing;
(iii) making the purchase of one product from the dominant company conditional on the purchase
of another environmentally friendly product (e.g. sale of a printer conditional on the purchase
of recyclable toner cartridges): i.e. as a defence to an allegation of tying.
(iv) Offering exceptionally low prices to generate trial of a new environmentally friendly product:
i.e. as a defence to an allegation of predatory pricing.
(v) Refusing access to an essential facility to a user who intends to use the facility for
environmentally unfriendly purposes : i.e. as a defence to an allegation of refusal to
supply/access.
While we are right to be sceptical about some companies “green washing” there are companies (and
certainly many individuals within companies) which are genuinely trying “to make a difference”.
EU MERGER CONTROL
how sustainability can be taken into account in the assessment of mergers…five options:
(i) In the substantive assessment of the merger under Article 2 of the EU Merger Regulation
(“EUMR”);78
(ii) When considering “efficiencies” under the EUMR;
(iii) When considering “remedies”;
(iv) Under Article 21(4) of the EUMR; and
(v) When mergers are reviewed under national competition law.
1. The Substantive Review of Mergers: Article 2(1.b) of the EUMR : EC, to approve, or not to approve, a merger, must consider the “development of technical and economic progress, provided that it is to the consumers’ advantage, and does not form an obstacle to competition” ….. thus, ec must, take into account (where appropriate) sustainability issues
positive environmental factors can play a significant part in clearing deals (i.e. concluding that the merger “would not significantly impede effective competition” – i.e. there is no “SIEC”).
the Commission must be “reasonably certain that the sustainability is likely to materialise”…ow, sustainability issues cannot justify to clear the merger.
While it is accepted that it is for the onus of prof is on the parties, the overall legal burden of proof still lies with the
Commission if it is to block a deal.
Remedies:
eg a remedy package to counter the negative sust. effects of a cleared merger.
-2 types of remedies:
a/ “behavioural” remedy (e.g. a commitment not to introduce certain ‘bad’ environmental practices).
b/ “structural” remedies [preferred by ec]
3. Article 21(4) of the EUMR:
member states may take “appropriate measures to protect legitimate interests [WPIs]” other than competition concerns. These concerns must either be those in Article 21(4): (“public security, plurality of the media and prudential rules”) or be “any other wpi” which has first been communicated to the Commission by the member state and
“recognised” by the Commission…..There is no express reference to sustainability here but
there are 2 ways in which these might be taken into account under Article 21(4):
(i) they might fall within one of the current “legitimate interests” – most likely “public security”
(e.g. the need to ensure a secure and sustainable supply of energy).
(ii) a member state could apply to the Commission to have an environmental / sustainability /
climate change concern “recognised” by the Commission as a legitimate interest.
Diff:
-Article 21(4) ‘s mechanism for a member state to review and block a deal that is EC cleared….but not the inverse: a member state may not approve a deal that is EC blocked
-National Merger Control : Where a merger does not fall within the EUMR, it may be reviewed under the national merger control rules of one or more member state…..e.g. Spain contain express reference to environmental issues, to clear a merger