On June 1, 2023 the European Commission (EC) adopted revised rules on cooperations among competitors. The new revisions add sustainability-related exemptions to existing antitrust law. Wilson Sonisini published a memo on June 23 breaking down the changes.
The revisions add a chapter for sustainability agreements and provide guidelines for which agreements are unlikely to raise competition concerns as well as how to weigh agreements that do impact competition but also work towards sustainability goals. Additionally, informal guidance can be sought by companies that are unsure if their agreements are protected.
However, this excerpt from the memo points out that multinational companies operating in the US are still subject to traditional antitrust law:
Despite the relaxation at the European level, there remains a significant uncertainty for sustainability collaborations that are global in scope. In particular, while U.S. Federal agencies have not indicated that pursuing sustainability collaborations was an enforcement priority, they made clear that such collaborations are not exempted from antitrust laws.
This is another example of a jurisdiction making ESG carveouts to its antitrust policy. We wrote about a similar development in the EU back in March. However, in the United States, the FTC has stated that there is no ESG exemption to antitrust enforcement. Companies engaged in collaborative sustainability initiatives should be relieved by the changes to EU law, but should still keep their guard up in the US.
