At this stage, it remains to be seen what approach the European Commission and Member States could take in assessing sustainable development agreements. Possible measures could include guidelines that set out certain types of green cooperation agreements that are not covered by the general ban on anti-competitive agreements; or guidelines on the conditions that must be met for green cooperation agreements to be considered pro-competitive (for example). B with regard to specific sustainability performance) and are therefore exempt from the general ban. In addition, the Commission could adopt a category exemption regulation providing for a “safe haven” for certain categories of sustainable development agreements that meet certain criteria, such as market share thresholds.B. The debate and debate on this subject is expected to continue in the near future. However, there are clear signs that these EU and Member State initiatives will be supported, in due course, by rules and guidelines for applying competition rules to common agreements that serve sustainable development objectives. One of the most important questions is the extent to which the scope of “sustainable development agreements” will be widely interpreted, what types of simplified comfort mechanisms will be presented, and to what extent the approach to quantifying the benefits of these types of agreements can be flexible, provided that the main approach is to clarify the application of Article 101. , paragraph 3 (and equivalent rules) to future provisions. As other Member States follow this example, it will be essential to have a common understanding across the EU.
Further developments are also expected with regard to state aid and concentration control. 2. Clarification of the law by soft law instruments. In this approach, the law enforcement authorities, of which the European Commission is the leader, are putting in place non-binding instruments that clarify their views on the role of sustainability in the application of competition law. On 13 October 2020, the EC launched a public debate on how EU competition rules can better support the Eu Green Agreement, with a call for contributions6 on the fundamental question of how competition rules and sustainable development policies can interact with each other and what can be improved. The EC has asked all those involved in this issue, including industry, environmental groups, consumer associations and competition experts, to present ideas and proposals to fuel the debate. The call for contributions runs until November 20, 2020. The different perspectives will be discussed at an EC conference in early 2021. 3) Reducing the risk of fines – The guidelines provide additional comfort so that the CMA does not impose fines when an initiative results in competition law violations, (a) that companies have followed the guidelines in good faith and that their sustainable development initiative has been public, or (b) has submitted previous guidelines to ACM that have not yet identified a problem.  Here is: a) the agreements offer efficiency gains, including sustainability gains; b) users of the products concerned can benefit from a fair share of these benefits; (c) restriction of competition is necessary to take advantage of it and does not go beyond what is necessary; and (d) competition is not eliminated for a substantial portion of the products concerned.
ACM points out that many sustainable development initiatives do not restrict competition and therefore do not, at first, fall within the scope of the ban on cartels. This includes, for example: traditionally, competition authorities have called for reduced competition to be offset only by sustainability gains that benefit users of the products concerned. Extending the scope of beneficiaries should make it easier for companies to demonstrate the necessary sustainability benefits.