Articles

Minister of Economic Affairs published a draft policy rule on competition and sustainability for consultation

Minister of Economic Affairs published a draft policy rule on competition and sustainability for consultation

Minister of Economic Affairs published a draft policy rule on competition and sustainability for consultation

04.01.2016 NL law

On 23 December 2015, the Minister of Economic Affairs published a Draft Policy Rule on competition and sustainability ("Draft Policy Rule") for consultation. The Draft Policy Rule aims to replace the previous policy rule on competition and sustainability adopted in 2014. 

The Draft Policy Rule provides guidelines on the assessment of whether agreements relating to sustainability are exempted from the cartel prohibition.

The 2014 policy rule faced considerable criticism, as it was found by many to hamper sustainability initiatives. Examples of sustainability initiatives that were found to be in violation of competition rules by the Netherlands Authority for Consumers and Markets ("ACM") are the agreement between energy producers to close down coal-fired plants and the arrangements between supermarkets, poultry farmers, and broiler meat processors concerning the selling of chicken meat produced under enhanced animal welfare-friendly conditions [see our February 2015 newsletter].

Like the previous policy rule, the Draft Policy Rule contains the factors to be taken into account when assessing whether agreements in the interest of sustainability are exempted from the cartel prohibition. However, the Draft Policy Rule contains some new elements so as to provide a clearer and more concrete framework.

The Draft Policy Rule now determines that restrictive agreements comprising a set of arrangements should be examined as a whole, when assessing the efficiencies of the restrictive agreement.

Also new is the specification that both qualitative and quantitative benefits are to be taken into account in the assessment of the benefit resulting from the restrictive agreement. The 2014 policy rule did not specify whether qualitative or quantitative benefits were concerned, which led the ACM to conclude that benefits must be quantifiable. Furthermore, the Draft Policy Rule exempts, where possible, restrictive agreements that benefit society as a whole, as opposed to agreements not related to sustainability, which should benefit specific groups of consumers in order to be exempted.

The consultation phase ends on 31 January 2016.

This article was published in the Competition Law Newsletter of January 2016. Other articles in this newsletter:

Team

Related news

07.10.2021 NL law
Commission’s record fine for gun jumping upheld

Short Reads - Pre-closing covenants protecting the target’s value or commercial integrity pending merger clearance from the European Commission must be drafted carefully. The General Court confirmed the Commission’s record-breaking fines on Altice for violating the EU Merger Regulation’s notification and standstill obligations. According to the General Court, the mere possibility of exercising decisive influence over the target can result in a gun jumping breach.

Read more

07.10.2021 NL law
ACM walks the walk: first-ever vertical price coordination fine

Short Reads - The Dutch Competition Authority (“ACM”) has claimed a first victim in its vertical restraints battle. Samsung Electronics was fined nearly EUR 40 million for having meddled in the online resale prices for televisions at seven retailers. Compared to the European Commission’s fines on four consumer electronics producers for resale price maintenance (“RPM”), the ACM’s summary decision seems to refer to a ‘light’ version of RPM: systematic price coordination without any threats, sanctions or incentives for the retailers to stick to the price.

Read more

07.10.2021 NL law
Commission reveals first piece of antitrust sustainability puzzle

Short Reads - The European Commission has published a Policy Brief setting out its preliminary views on how to fit the European Green Deal’s sustainability goals into the EU competition rules. Companies keen to be green may be left in limbo by a looming clash with more far-reaching proposals from national competition authorities. More pieces of the antitrust sustainability puzzle will fall into place as soon as the ongoing review of the guidelines on horizontal cooperation is finalised.

Read more

24.09.2021 EU law
Digital Law Up(to)date: (1) the download of a software with a permanent licence can constitute a “sale of goods”; (2) alert of the BEUC regarding the privacy policy of WhatsApp and its new term of use

Articles - In this blog, we briefly present two interesting news in the field of digital law: (1) a judgment of the CJEU considering that the download of a software with a permanent licence can constitute a “sale of goods”, and (2) an alert of the BEUC regarding the privacy policy of WhatsApp and its new terms of use.

Read more

07.10.2021 NL law
Court of Appeal provides guidance for further course of proceedings in prestressing steel litigation

Short Reads - On 27 July 2021, the Court of Appeal of Den Bosch issued an interim judgment in the Dutch prestressing steel litigation, ruling on three issues: (i) the obligation of claimant to furnish facts; (ii) the assignment of claims; and (iii) the liability of the parent companies. In short, the Court of Appeal allowed the claimant Deutsche Bahn another opportunity to supplement the facts needed to substantiate its claims in the next phase of the proceedings.

Read more

13.09.2021 NL law
Adopting the new Standard Contractual Clauses to secure international personal data transfers

Short Reads - Recently, the European Commission issued an implementing decision on standard new contractual clauses (“SCCs”) for the transfer of personal data to countries outside the European Economic Area. Organisations need to use the new SCCs from 27 September 2021 and onwards. Transitional periods apply for existing international data transfer agreements. To meet their obligations under the General Data Protection Regulation, organisations need to make the appropriate changes in time.

Read more