On 28 April 2021, Martijn Snoep, Chairman of the Netherlands Authority for Consumers and Markets (ACM), gave a speech at the GCE Conference Sustainability and Cooperation.^[1] He argues that, in addition to government authorities, businesses and consumers, competition authorities must actively contribute to achieving the new European climate targets in order to prevent drastic climate change. In particular, a revision is needed of the Commission’s competition policy: a new interpretation of the fair share test.

The fair share test currently entails that anti-competitive arrangements between competitors are only permitted if consumers are fully compensated by the benefits that the agreements generate for them. On behalf of the ACM, Snoep argued for an exception to be made for agreements that lead to environmental benefits for the whole of society by the reduction of negative externalities. In other words, these agreements would meet the fair share test if the environmental benefits to society as a whole outweigh the negative effects to consumers. This requires companies to work together to achieve Europe’s climate goals. According to Snoep, the Commission’s current interpretation of the fair share test hinders such cooperation.

In response, the ACM has drawn up new sustainability guidelines. First, the ACM wanted to show how companies could cooperate to achieve sustainability goals without infringing competition rules. Second, the ACM told the business community that it was open to discussing with them their sustainability initiatives, that it was willing to give guidance, and that it would not impose any fines on companies that follow the guidelines in good faith. And third, the ACM’s aim was to show how the fair share test could be modified without opening the floodgates to all sorts of agreements aiming to achieve various public goals.

[1] Martijn Snoep, “Speech Duurzaamheid en samenwerking”, GCR Connect 28 April 2021.