I’m dreaming of a green 2024

The push for sustainability among businesses continues to gather pace. Competition authorities around the world have increasingly been taking note. At least in Europe and the UK, there is broad consensus that competition regulation should not stand in the way of sustainable collaboration and that in fact, competition can be a key driver of success in the promotion of ESG goals. 2023 saw the introduction of additional guidance for businesses seeking to collaborate in relation to sustainable initiatives including the updated EU Horizontal Guidance which came in to force in July 2023 (see here), the EU guidelines on how to design sustainability agreements in the field of agriculture which came in to force in December 2023 (see here), and the CMA’s Green Agreements Guidance which came into force in October 2023 (see here) as well as the first informal guidance on a sustainability co-operation (see here).

We recommissioned a survey, first undertaken in 2020, to gauge the temperature among sustainability professionals. How has the landscape changed in the last three years? Does competition regulation remain an obstacle for those seeking to pursue sustainability goals? The survey reflects the views of over 500 sustainability professionals across the UK, USA, France, Germany, and the Netherlands and compares their responses to those received in 2020.

Key survey results

The research indicates that 82% of sustainability professionals polled consider collaboration with peers to be critical in driving sustainability goals. And while the exact projects that businesses want to collaborate on had shifted slightly, the desire to work together on sustainability projects remains high.

Our findings show that the majority of sustainability professionals still view competition law as a barrier to sustainable collaborations, with an increasing number highlighting that competition law has played a role in them not pursuing a particular sustainability project. But there are positive signs.

The survey indicates that a significant majority of participants feel increasingly confident to work together where guidance on sustainable collaboration has been published by competition authorities. This shows that where competition authorities have provided clear direction (e.g. in the EU and UK) this is welcomed as a way forward.

There is still some way to go in increasing confidence among firms to pursue sustainability goals which are crucial to managing the climate emergency. And notably there is no sign of guidance in the US – on the contrary, firms need to grapple with a different political landscape and legal framework, against a backdrop of active threats of climate-related antitrust litigation (see here). Nevertheless, this most recent survey shows that progress has been made in the last three years.

Where next?

The next frontier for sustainability collaborations could well be in the Asia Pacific region. As sustainability and ESG considerations now are front and centre in Asian boardrooms, the need to collaborate in a competition law compliant manner is ever more important. The New Zealand, Japanese and Singapore agencies published detailed guidance in 2023 and other regulators look set to jump on the band wagon.  Learn more by listening to our podcast.

And we may also see sustainability considerations start to feature more heavily in merger control. As we have previously written, this is theoretically possible in the EU and UK, but there are no cases yet. Leading the pack here is Australia which is the first authority to have cleared a merger on environmental grounds – the ACCC recently concluded that the public benefits of an acquisition (by increasing investment in renewable power) outweighed anti-competitive effects.

A full copy of our survey is available here and you can listen to our Partners Annamaria Mangiaracina and Jonathan Ford discuss the results in a webinar with Alexander Winterstein (EC), Martijn Snoep (Dutch ACM) and Denise Hearn (University of British Colombia) here.