Sustainability is one of the key priorities of the Dutch Authority for Consumers & Markets ("ACM") and has also recently become a priority for the European Commission ("Commission").

In 2016, the Dutch Minister of Economic Affairs and Climate published policy rules regarding competition and sustainability (only in Dutch). The policy rules provide guidance on the Dutch cartel prohibition in the case of anti-competitive agreements promoting sustainability. Recently, the ACM published its second draft version of the new Guidelines on Sustainability Agreements ("Guidelines"). The Guidelines further clarify the ACM position and provide guidance for self-assessment of the legality under the cartel prohibition of ESG measures/sustainability agreements between competitors.

The Commission recently published a draft update of its Horizontal Cooperation Agreements Guidelines for consultation. The draft update now includes a separate chapter on sustainability agreements.

Not applicable. 

The ACM has not provided guidance on the role of ESG or sustainability in the assessment of mergers. The ACM has provided draft Guidelines but these are limited to the competition law analysis of cartels (see our response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?").

The ACM has issued draft Guidelines (see our response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?") which cover competitor collaborations or participation in industry working groups. They also specifically address the interpretation of the competition rules in the case of ESG.

Yes, this is possible. In our experience, the ACM is very open to informally discussing such initiatives, particularly in its early stages. These discussions may result in written 'informal guidance' that the ACM may publish.

Generally, the ESG effects on consumers and society as a whole* should be objectively quantified and outweigh the negative effects on competition. However, the ACM's draft Guidelines propose that no quantification is needed, if i) the undertakings involved have a limited combined market share (i.e. no more than 30%) and ii) the harm to competition is evidently smaller than the benefits of the agreement.

For quantifying ESG effects, no specific method is prescribed. The parties involved may use existing studies by research institutes, government agencies, international organizations (or the research divisions thereof), influential NGOs or studies of their own.

Suggested methods are expressed in monetary terms using what is known as 'environmental prices' (shadow prices). These environmental prices are values that express the price that society assigns to the harm caused by environmental effects such as pollutive emissions and greenhouse gas emissions. Environmental prices can be categorized into two main types: the environmental price based on prevention costs and the environmental price based on damage costs.

If such prices cannot be calculated, another option is to determine more directly what value can be assigned to the improvements that are the result of the agreement in question by measuring the user valuation. For example, improvement in terms of human friendliness, animal friendliness or environmental friendliness can be measured by user valuation (willingness to pay).

*The ACM and the Commission disagree on whether benefits for society as a whole should be considered. The Commission's view is that consumers must at least be compensated for the restrictive effects of the agreement.

Not applicable. 

There are recent precedents indicating the ACM's current position. Whereas in older precedents the ACM de facto prohibited several ESG initiatives, the recent precedents show the ACM's willingness to consider and informally approve ESG initiatives.

I. Project Aramis – CO2 storage initiative

Shell, TotalEnergies, EBN and Gasunie are jointly developing infrastructure to permanently store CO2 in empty natural gas reservoirs in the North Sea Continental Shelf (Project Aramis). Shell and TotalEnergies jointly offer CO2 storage, and therefore jointly set the price with an eye to putting the first 20% of the trunk line’s capacity into operation. This is required for the feasibility of the project. For the remaining 80%, no collective agreements will be made.

Shell and TotalEnergies are competitors. ESG collaborations between two competitors may negatively affect price, quality and innovation, but such effects may be offset by certain benefits that collaboration has for those businesses' customers and society as a whole. Therefore, the parties asked the ACM for informal guidance on whether their collaboration would be compatible with the competition rules that offer an exemption to the prohibition to restrict competition if, in short, the benefits outweigh the costs.

The ACM was willing to informally review Project Aramis and concluded that the collaboration is necessary and meets the exemption criteria. The benefits for customers and society as a whole exceed the costs of the restriction of competition. Houthoff advised the joint project partners (Shell, TotalEnergies, EBN and Gasunie) in Project Aramis.

II. Collaboration of companies purchasing electricity wind farms VEMW is an association for non-domestic energy and water users.

VEMW wants its members to be able to enter a joint supply contract with the future developers of a wind farm. Their aim is to fix their green electricity price for several years and to stimulate the production of sustainable energy.

The ACM has assessed the ESG collaboration and concludes that this initiative applies to one wind farm that has yet to be put out to tender. In addition, there remain sufficient opportunities for companies and developers of wind farms to buy and sell sustainable energy elsewhere. Therefore, this collaboration does not affect competition in the Netherlands.

III. Collaboration of network operators to reduce CO2 emissions

Network operators aimed to agree on a fixed price for CO2 to be incorporated when making purchasing and investment decisions. This fixed price is a shadow price of CO2 calculated based on a maximum temperature rise of 2 degrees Celsius by 2050. This makes it more attractive to make investments that lead to lower CO2 emissions: the less CO2 they emit, the lower the costs.

The ACM assessed the initiative and concluded that the proposed fixed price of EUR 50 per tonne of CO2 will not have a noticeable effect on the costs and thus on grid operators' pricing. This may change if the CO2 price rises. However, the ACM concludes that even with a higher price for CO2 after quantification, the sustainability benefits outweigh the possible costs for users. The ACM also believes that cooperation is necessary to achieve this benefit and there remains sufficient room for competition.

There is no specific antitrust regulation in the Netherlands that might give rise to private or class action ESG litigation. However, there has been considerable non-antitrust climate litigation based on general provisions in the Dutch Civil Code – specifically claims based on unlawful acts.