Global Antitrust in 2024: 10 key themes

Divergent approaches create risk for companies seeking to collaborate on sustainability initiatives

As pressure on businesses grows, it has become clear that the ambitious environmental goals set by governments and other stakeholders often can be met only through collaborative efforts among competitors across the entire value chain to change production, distribution and sales processes.

Antitrust authorities are typically keen to ensure that laws and enforcement policies do not stifle legitimate collaborations, but they will take a hard line on any conduct that infringes the law. The line between permissible and illegal collaborations has become more significant, and staying on the right side of that line can be challenging when:

• the legal analysis rests on a complex evaluation of future sustainability benefits (beyond price or efficiency gains) against potential costs for consumers; and
• antitrust authorities are taking divergent approaches to this assessment – with the debate focused on how long-standing “consumer welfare” principles apply when the whole of society will benefit from the initiative.

While authorities in the UK, the EU and APAC have adopted specific guidance to better enable businesses to collaborate within the confines of the law, the US agencies have been clear that environmental justifications do not affect the legality of agreements between competitors. Companies have complained that such uncertainty is chilling legitimate initiatives that are needed now.

Welcome guidance in the EU and the UK

2023 saw both the European Commission (EC) and the UK Competition and Markets Authority (CMA) publish long-awaited final guidelines on agreements between competitors that pursue sustainability objectives. The EU is also following the UK in producing guidance for businesses making environmental claims, with the aim of tackling “greenwashing”.

Importantly, the CMA and EC have joined the Dutch and Greek authorities in encouraging informal consultations on initiatives, which offer a way for businesses to get direction as to how their agreement is likely to be viewed. For collaborations that have some restrictive effect, a key challenge is how to demonstrate with cogent evidence that collaboration, as opposed to unilateral action, is needed to achieve the intended goals and that future benefits for consumers (or wider society) will outweigh any short-term harm.

However, convergence between authorities on key issues at an international level remains elusive. While some other jurisdictions (such as Japan) have also published similar guidance, the prevailing view of US federal antitrust agencies remains that no quantum of Environmental, Social and Governance (ESG) benefits can save an agreement that negatively affects competition.

No special treatment for ESG agreements in the US

In the US, the US Department of Justice (DOJ) Antitrust Division and Federal Trade Commission (FTC) continue to affirm that there is no exemption from the antitrust laws for agreements relating to ESG. The agencies have been clear that they intend to assess ESG-related conduct within the traditional antitrust framework.

By contrast, state antitrust enforcers and legislators have been much more active in pursuing ESG-related agendas – in divergent ways. Various state attorneys general have sent letters to climate-focused initiatives and alliances interrogating the legality of commitments to collaborate to achieve sustainability. Although there has been no litigation to date, some participants have responded by withdrawing from the alliances. On the other hand, pro-ESG states are pushing legislative efforts in the opposite direction, such as by requiring pension funds to divest interests in fossil fuel assets.

Looking forward, ongoing attention to antitrust compliance within the context of ESG initiatives will remain critical. The US federal agencies are not anticipated to issue any explicit guidance in the near future and we do not expect them to modify their approach in applying traditional antitrust principles to ESG-related conduct. As a result, requests for the agencies to provide guidance to businesses on the legality of particular initiatives will generally be unproductive.

Will ESG factors influence the outcome of merger reviews?

We are increasingly seeing the issue of sustainability raised at all stages of the merger review process; as part of the rationale for a transaction; in the assessment of the market (such as the impact of competition on green innovation and changing consumer preferences); and in whether ESG benefits can outweigh other potential consumer harm.

This can work both ways. On the one hand, merging parties should prepare for authorities taking narrower approaches to market definition as consumer preferences for “green” products are increasingly seen as differentiating factors, raising the bar for clearance in some cases. On the other hand, some authorities are making tentative signals that sustainability benefits may count as efficiencies that offset any adverse effects. Deals cleared on this basis are still very rare, largely because the burden on parties to demonstrate efficiencies and benefits is so high. However, the groundbreaking decision by the Australian Competition and Consumer Commission (ACCC) in October 2023 to approve the Brookfield/Origin Energy merger on the basis that environmental benefits are likely to outweigh any detriment to competition may signal greater willingness by some authorities to take account of sustainability benefits in future merger reviews.

As experience with identifying and quantifying benefits grows, businesses should get a better sense of how these issues will be addressed in practice. However, authorities are again likely to take divergent approaches – driven by the different legislative frameworks within which the agencies operate. The ACCC is one of a small group of agencies that can clear mergers on the basis of “public benefits”. In Brookfield/Origin Energy, an accelerated roll-out of renewable energy generation leading to a more rapid reduction in greenhouse gas emissions was treated as a public benefit. Other agencies apply narrower tests, with exemptions often framed around concepts of economic efficiency.

The EC has, however, explicitly recognized sustainability as a parameter of competition in its draft updated market definition notice and highlighted the growing role of ESG issues in merger reviews in a recent brief on sustainability in merger decisions. It emphasizes that the current assessment framework is flexible enough to take account of sustainability issues but also highlights the risk of so called “green killer acquisitions” coming under extra scrutiny.

The CMA has also recognized sustainability as a potential parameter of competition and/or consumer benefit, but these are considered under the existing framework, which imposes a very high bar for the recognition of such benefits.

In the US, the agencies have not recognized ESG considerations as relevant in merger analysis. FTC Chair Lina Khan has stated that ESG benefits are “no defense” for otherwise illegal mergers. While the revised US merger guidelines published in December 2023 do not mention ESG-related conduct or efficiencies, the proposed framework would allow for a more expansive approach to merger analysis, providing the agencies with flexibility to assert potential anticompetitive harm and further scrutinize efficiencies claims.

Financing a greener future

The past few years have seen governments introduce major subsidies to help finance the shift to a greener future. In March 2023, the EU unveiled its proposal for a Net Zero Industry Act to boost competitiveness in Europe, which followed the US and its $369 billion subsidy-rich Inflation Reduction Act. However, these schemes can pose problems under international trade law, and there are an increasing number of examples where challenges are being brought under anti-subsidy or trade rules against subsidization of green industries, which can cause problems for companies relying on these measures and schemes given the uncertainty that these challenges create.

For example, 2023 saw the EC open a probe into Chinese electric vehicles as well as engage in talks with EU wind turbine makers about a potential probe into unfair state subsidies that help Chinese producers undercut EU competitors.

The EU Carbon Border Adjustment Mechanism, a controversial levy on carbon-intensive goods that acts as a complement to the EU Emissions Trading System, is also not without its critics, with allegations leveled that it breaches international trade law.

Subsidy wars have created some uncertainty for businesses on a global scale, while bolstering investment in green tech at the EU level. 2024 will likely bring further subsidy control enforcement as the EU seeks to protect domestic industry.