Guidance from the United Kingdom’s Competition and Markets Authority (CMA) about environmental sustainability agreements between competitors is a good start but needs to go further, McGuireWoods London partner Matthew Hall wrote in a March 23, 2023, commentary in The Times.
“Britain should go Dutch when it comes to environmental sustainability agreements,” Hall wrote. He lauded the CMA’s desire to ensure that competition law doesn’t impede legitimate collaboration between businesses that is necessary to promote or protect environmental sustainability. But he added that the draft guidelines are too restrictive.
Instead, Hall encouraged the CMA to follow the lead of Dutch competition regulators, leaders in this area. When weighing the benefits of environmental sustainability agreements against anti-competitive harms, Dutch regulators may consider benefits to the general population from a wide range of such agreements, whether they relate to climate change, biodiversity or even healthy livelihoods generally. The CMA limits its analysis to climate change. This analysis is too narrow given the exceptional nature of the harms biodiversity loss poses, Hall said.
“The innovative Dutch guidelines reflect this — and British guidance needs to be revised in the same way. That will help society by making sure competition law is not part of the problem when it comes to both biodiversity loss and climate change,” Hall wrote.