McGuireWoods London partner Matthew Hall commented in an Aug. 17, 2023, Global Competition Review article on the UK Competition and Markets Authority’s final version of its guidelines on the treatment of horizontal cooperation agreements under UK competition/antitrust law. The guidelines, issued Aug. 16, 2023, diverge from the EU on certain types of information exchange and omit a section on sustainability agreements.
In February, the CMA issued draft sustainability guidelines under competition law providing that agreements must be “indispensable” to achieving sustainability benefits and must not eliminate competition to be exempt. However, the CMA did not include these sustainability agreements in the new guidelines, noting that separate guidance would later be issued on how they apply to the UK’s rules against anticompetitive agreements.
Hall said the CMA’s failure to include an environmental sustainability agreements section as originally planned suggests the agency is considering this more closely, including whether to further align its approach with the EU’s somewhat wider view. The EU includes “a broad definition of sustainability objectives” and clarifies that antitrust rules are not intended to prohibit agreements among competitors that want to pursue sustainability goals.
Hall further noted that under the UK’s Digital Markets, Competition and Consumers Bill, the government proposes to change the territorial scope of horizontal agreements to encompass agreements implemented outside the UK but with effects in the country, a position that aligns with the EU.