Sustainability and Competition Global Practice Guide |
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Luxembourg |
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(Europe)
Firm
Arendt & Medernach
Contributors
Philippe-Emmanuel Partsch |
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| Are ESG measures/sustainability agreements included in your jurisdictional competition regime? | No, not for the time being. |
| If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022? | No – but the Ministry of the Economy does intend to adopt a merger control regime in 2023, for which it cannot be ruled out that ESG and sustainability efficiencies may play a role. |
| Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct? | No guidance has been issued on the subject. We do see, however, close alignment of the Competition Council with the EU Commission practice, and consider it likely that also the (new) draft guidelines on horizontal cooperation of March 2022 (which have an increasing focus on green/sustainable cooperation) will be applied by Luxembourg competition authorities. In the Webtaxi decision (Decision 2018-FO-01, 7 June 2018), the Competition Council found that a taxi reservation center that set the prices that taxis belonging to several taxi companies would charge passengers was exempted from the application of Article 101 TFEU by identifying in particular efficiency gains related to a decrease in carbon emissions. |
| Has your jurisdiction issued guidance regarding competitor collaborations or participating in industry working groups, and if so, do they specifically address ESG? | No, not yet, but we would expect the Competition Council to move in this direction as well due to a significant increase in innovation efforts and strong support for the EU Green Deal. |
| How, if at all, does your jurisdiction quantify or calculate the ESG effects? | There is no merger control regime in place where ESG effects would need to be quantified to clear a transaction. We are also not aware of a precedent for behavioral abuses or anti-competitive conduct, where ESG efficiencies would have exempted or “protected” such abuses and/or conduct. In the aforementioned Webtaxi decision, the ESG effects (decrease of carbon emissions) were not quantified/calculated. The Council observed that directing the taxi closest to the customer for the reservation leads to decreasing the pollution resulting from the circulation of taxis and consequently, also decreasing carbon emissions. |
| What does your legal authority currently permit even if your agency is not yet active on this topic? | For the time being, we would expect the Luxembourg Competition Council to follow EU Commission guidance on the topic – in line with the EU Commission Policy Brief of 2021, we would expect that efficiencies related to sustainability must be “in-market”, that is to say, that sustainability benefits must at least partially be realized in the market where competitive concerns (be it due to an Art. 101 or 102 abuse) have been identified. |
| Are there precedents that involved ESG/sustainability matters in your country? If so please provide a short description. | To date, there are no such precedents. |
| Is there specific antitrust regulation in your jurisdiction to be aware of which might give rise to private or class action ESG litigation? | The EU Private Damages Directive "(Directive 2014/104/EU)" has been transposed in Luxembourg, but there is to date no specific mention of ESG litigation. |
Sustainability and Competition Global Practice Guide
Luxembourg
(Europe) Firm Arendt & MedernachContributors Philippe-Emmanuel Partsch
Updated 06 Sep 2022No, not for the time being.
No – but the Ministry of the Economy does intend to adopt a merger control regime in 2023, for which it cannot be ruled out that ESG and sustainability efficiencies may play a role.
No guidance has been issued on the subject. We do see, however, close alignment of the Competition Council with the EU Commission practice, and consider it likely that also the (new) draft guidelines on horizontal cooperation of March 2022 (which have an increasing focus on green/sustainable cooperation) will be applied by Luxembourg competition authorities.
In the Webtaxi decision (Decision 2018-FO-01, 7 June 2018), the Competition Council found that a taxi reservation center that set the prices that taxis belonging to several taxi companies would charge passengers was exempted from the application of Article 101 TFEU by identifying in particular efficiency gains related to a decrease in carbon emissions.
No, not yet, but we would expect the Competition Council to move in this direction as well due to a significant increase in innovation efforts and strong support for the EU Green Deal.
There is no merger control regime in place where ESG effects would need to be quantified to clear a transaction.
We are also not aware of a precedent for behavioral abuses or anti-competitive conduct, where ESG efficiencies would have exempted or “protected” such abuses and/or conduct.
In the aforementioned Webtaxi decision, the ESG effects (decrease of carbon emissions) were not quantified/calculated. The Council observed that directing the taxi closest to the customer for the reservation leads to decreasing the pollution resulting from the circulation of taxis and consequently, also decreasing carbon emissions.
For the time being, we would expect the Luxembourg Competition Council to follow EU Commission guidance on the topic – in line with the EU Commission Policy Brief of 2021, we would expect that efficiencies related to sustainability must be “in-market”, that is to say, that sustainability benefits must at least partially be realized in the market where competitive concerns (be it due to an Art. 101 or 102 abuse) have been identified.
To date, there are no such precedents.
The EU Private Damages Directive "(Directive 2014/104/EU)" has been transposed in Luxembourg, but there is to date no specific mention of ESG litigation.