Previously, we wrote about draft guidance in the UK creating special antitrust carveouts for ESG agreements. Recently, that guidance was finalized and outlines the terms under which a sustainability agreement may reduce its exposure to a Chapter I antitrust enforcement. This is discussed in a recent Ropes & Gray memo:
“The Guidance establishes a framework to assess whether environmental sustainability agreements and climate change agreements between competing businesses are likely to be exempt from Chapter I enforcement in the UK. The Guidance establishes categories of agreements that the CMA is unlikely to enforce against, agreements that are likely to be restrictions ‘by object’, four conditions for an ESG agreement to be exempt, and an informal consultation mechanism”
Additionally, the CMA is establishing an “open-door policy” which allows companies that are considering or already in ESG agreements to seek informal guidance from the regulator. The CMA clarifies that any feedback will be provided with a “light touch” including any changes to the agreement which the regulator believes are required by law.
Once again, the US stands in stark contrast to regulators around the world who have created sustainability-specific antitrust guidance and regulations. A panel comprised of legal experts including members of the FTC and EPA recently spoke at an event hosted by the ABA. The panel suggested that previous US guidance and case law on antitrust was sufficient to address sustainability concerns. However, until the US has some firm guidance in this area, antitrust concerns are likely to keep legal departments up at night.
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