WPIS: S.9 EXEMPTION. CCAS. CRP. GLP ON ENZF

how will cma apply the S.9 [rival collaboration] exemption [so that ua is cleared]?

by using four “efficiency” criteria:

• the agreement must give rise to benefits to production, distribution or technical or economic progress (Condition 1);
• the restriction to competition arising from the agreement must be indispensable to achieve those benefits (Condition 2);
• consumers must receive a fair share of the benefit (Condition 3); and
• there must be no elimination of competition (Condition 4)

---

Condition 1 – Efficiencies

egs of sustainability benefit [that the CMA will take into account] for S.9 exemption:

• addressing harmful external effects that the markets have failed to correct;
• creating new greener products;
• reducing production and distribution costs, for example by creating economies of scale in relation to a new more sustainable input;
• introduction of cleaner production and distribution technology; and
• driving new innovative environmentally friendly processes.

these benefits must be objective, concrete and verifiable, although longer term future environmental benefits may be relevant

CMA consider environmental benefits to be “efficiencies” for s.9

---

Condition 2 – Indispensability

parties must demonstrate that the restriction of competition is indispensable = “there must be no less restrictive but equally effective, alternative” [=where the parties can demonstrate that they would not be able to achieve the same level of benefits, or obtain those benefits as quickly, if they were acting independently]

examples [of agreements of indispensable sustainability]:

• competitors entering into a collective purchasing arrangement to increase demand and drive economies of scale for a new more sustainable input (e.g. a plastic replacement); and
• an agreement between competitors to switch to a more environmentally friendly (but more expensive) input in circumstances where no single company would be incentivised to make that change independently – i.e. where there is a “first mover disadvantage”.

…BUT CMA makes clear that where there is a demand for a sustainable product, and customers will buy the more expensive sustainable product, businesses must compete

---

Condition 3 – Consumer benefit

consumers must receive a fair share of any benefit

-The conservative interpretation: only purchasing consumers can be considered when assessing whether a fair share of the benefits have been passed on. 

However, this interpretation falls down when considering sustainability agreements, because the true environmental cost of a product is not only borne by the purchasing consumer, but spread across society (negative externalities).

-The non conservative interpretation:  both “in-market” benefits and “out-of-market” benefits should be taken into account.  furthermore, if negative externalities were factored into prices (via government policies), e.g. through an effective carbon pricing system, this point would become moot

The CMA’s interpretation, is conservative [that only in-market benefits should be taken into account], except with respect to climate change agreements

This can create challenges where the environmental benefits of a given agreement are enjoyed far beyond its consumers, or where those consumers are insensitive to a given sustainability benefit that has significant value

ec.cma:  consumers in “related” markets can be taken into account, provided the consumers affected by the restriction and receiving the benefit, are “substantially the same or substantially overlap

Once the relevant consumers have been identified, the parties must quantify the benefits of the agreement and demonstrate that they are sufficient to offset the harm [arising from the restriction of competition].

in many cases it will not be necessary to quantify the benefits precisely, particularly where they are clearly sufficient to offset the harm to competition, for example because the agreement will give rise to only a limited restriction of competition but a significant sustainability benefit

example of ‘established techniques’ that can be used: – instruments for carbon pricing – eg the UK Emissions Trading Scheme to put a price on the greenhouse gas emissions

the quantification exercise should be proportionate: “businesses should apply these techniques commensurate with the size of the agreement’s effects” and “follow best practice in the industry”  

<> cocoo will challenge these Calculations done by firms

---

---

Climate change agreements [CCAs]

The CMA exempts ccas if the “fair share to consumers” condition can be satisfied, taking into account the totality of the benefits to all UK consumers, not just those that are affected by the distortion of competition

the parties to the cca need to demonstrate that its benefits are in line with legally-binding cca requirements, or well-established national or international targets, that UK consumers, as a whole, benefit, and that the benefits offset the harm…..but is not always be necessary to precisely quantify/balance those benefits…..eg. where the benefits to wider society are obvious and significant, but the competitive harm is likely to be low [eg limited increase in price or reduction of choice to consumers]

What are ccas?

are a subset of environmental sustainability agreements [ contribute towards the UK’s binding climate change targets under domestic or international law]  = uas that reduce the negative externalities from greenhouse gases emitted from the production and consumption of goods and services]

an agreement to reduce or eliminate certain types of plastic packaging , reduces carbon emissions during the production process, thereby “reduces the negative externalities from greenhouse gases” such that it could be classified as a cca…. in practice, the cma will only clasify it as a cca if the ua achieves large reductions in greenhouse gas emissions

<> cocoo will fight plastics, arguing that the reduction in neg.ext. is large enough to be a cca, thus clearing the anticomp merger……or that the merger should be blocked becos the reduction in neg.ext is not large enough to be a cca.

<> the line between cca/noncca, is very fine, invisible, subject to challenge by cocoo <> ask cma directly about particular firms/mergers….CMA has  an open-door policy: businesses to approach the CMA for informal guidance on proposed environmental sustainability agreements]…This is subject to the condition that the parties did not withhold relevant information from the CMA that would have made a material difference to its assessment

CMA publishes anonymised summaries of sustainability agreements that have been shared for cma approval

<> cocoo will seek disclosure

cl and cma are failing their duty to effectively facilitate businesses’ desire to address climate change. how?: cl , and cma interpretation of cl, should be more admissible of accepting agreements as ccas…well beyond the restrictive interpretation by the EC

---

---

Procurement Policy Note (PPN) 06/21

---

Some large companies already self-report parts of their carbon emissions, known as Scope 1 (direct) and Scope 2 (indirect owned) emissions. also requiring the reporting of some Scope 3 emissions, including business travel, employee commuting, transportation, distribution and waste. Scope 3 emissions represent a significant proportion of an organisation’s carbon footprint.

any organisation bidding for a contract of over £5 million per annum, must publish a compliant Carbon Reduction Plan (CRP): how your organisation intends to achieve net zero greenhouse gas emissions by 2050 (at the latest). it is far from just a paper exercise.

What do you need to do to be compliant?

To be compliant, CRPs must cover all Scope 1, all Scope 2, and some Scope 3 emissions.

• Scope 1 includes direct emissions from burning fossil fuels such as coal, oil and gas
• Scope 2 includes emissions from the generation of electricity that you use
• Scope 3 includes everything else across your entire value chain, from raw materials through logistics, processing, packaging, use and disposal of product.

CRPs must comply with the internationally recognised GHG Protocol’s Corporate Accounting and Reporting Standard

<> cocoo will challenge the credibility of firms’ crps, which fail to comply with the GHC protocol standard, thus such firms cannot bid for public tenders..and if they have already won a tender, is void….this will also affect such firms’ green credentials [ are they also greenwashing?]

---

---

---

GLP / CROWDJUSTICE !!!!

---

---

THE EVERYTHING NET ZERO CONTRACT [ENZC]. 70 billion pounds.

---

Body responsible for mediation procedures: E2BN. Unit 1 Saltmore Farm, Hinxworth

SG7 5EZ   Email Tender@E2BN.org Telephone +44 1462834588   www.e2bn.org

---

a small firm won the ‘public’ tender to manage the contract….why was only 1 tender received??

<> CROWDJUSTICE PAP, AND WON COSTS IN SETTLEMENT, THIS MONTH!, BY JUST ARGUING THAT THE CORNWALL SMALL EDUCTION FIRM SHOULD NOT HAVE BEEN GIVEN THE ENZC MANAGEMENT.

<> cocoo will claim that:

-A particular enzc’s terms + the way collaborating rivals balance, is causing (new or existing) collaborating rivals (eg beneficiaries of the enzc) , to cross the fine line [between wpi <> clcp]…cocoo will be challenging the way collaborating rivals balance [cl<>wpi], in breach of clcp or wpi or of remedies

clcp has a duty to facilitate rival collaboration [on wpi grounds ]…eg via the ENZC [everything net zero contract], so that collaborating rivals ‘should not’ worry about breaching clcp……BUT , indeed, they should worry…as cocoo will be challenging collaborating rivals’ balancing of [cl<>wpi] , and the terms of particular enzcs.

-enzc is strategically flawed.

-enzc management was unlawfully tendered and awarded

-e2bn (mediator contract), is in a FARM???…was unlawful awarded

-the awarded firm is failing to properly manage the enzc

-the beneficiaries of the enzct are failing their duties to implement it properly

---