Chemicals & Environment

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The European Commission is currently running a public consultation on the draft Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements (“draft Horizontal Guidelines”) and the draft revised horizontal block exemption regulations until 26 April 2022. The long-awaited draft Horizontal Guidelines have introduced a new chapter (Chapter 9) on sustainability agreements. Against the background of various green initiatives by the EU, including its ambitious Green Deal and Chemicals Strategy for Sustainability (see our analysis here), the industry has been advocating for further guidance on collaboration among competitors to meet different sustainability goals. Any guidance is further welcomed as it is proposed by the draft Directive on Corporate Sustainability Due Diligence that undertakings should collaborate to increase their ability to bring the adverse environmental or human rights impacts to an end (see our analysis here).

We explore here below the proposed approach by the Commission on the sustainability agreements – horizontal cooperation agreements that genuinely pursue one or more sustainability objectives. The draft Horizontal Guidelines and the proposed approach may be further revised based on the input from different stakeholders gathered during the public consultation.…

Continue Reading Client Alert: Sustainability Corporation Among Competitors and Competition Rules – Do We Have Clear Guidance from the European Commission?

On March 8, 2022, the Competition and Markets Authority (CMA) published its decision to accept commitments offered by Gridserve (the owner of The Electric Company Limited) and three motorway service area (MSA) operators: Roadchef, MOTO and Extra.  This article considers the background and implications of the CMA’s enforcement action against the parties.
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Continue Reading The CMA Investigation into EV Chargepoint Operators and Net Zero

President Biden’s unprecedented July 9, 2021, Executive Order 14036 represents a potential watershed moment in U.S. competition policy. The wide-ranging Executive Order (EO) includes 72 initiatives that aim to enforce existing antitrust laws and other consumer protection regulations, to be undertaken by at least 15 federal departments, offices, and agencies. The Biden Administration’s stated hope is that these efforts will drive down prices for consumers, increase wages for workers, and facilitate innovation.
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Continue Reading Biden Administration Calls for Whole-of-Government Approach to More Vigorous Antitrust Enforcement

On July 14, 2020, the European Commission adopted its 33rd cartel settlement decision: an unusual one involving a purchasing cartel, in the ethylene merchant market.  Four companies were found liable for having colluded for over 5 years to drive down the prices in monthly ethylene merchant bidding markets.  Westlake was the first to apply to the Commission and received immunity from fines (which would have been about Euro 190M). The other three were fined in aggregate Euro 260M.

What are the interesting features of this cartel decision?
Continue Reading An Unusual Purchasing Cartel: EU Fines Ethylene Purchasers

The CMA has provided guidance on its expected approach to merger assessments during the Covid-19 pandemic. While the timescales and substantive assessment of a merger’s effects on competition remain unchanged, the CMA has made a number of adjustments to its working arrangements in order to meet deadlines and progress cases. However, it is likely that some aspects of investigations may be subject to some delay.
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Continue Reading CMA Guidance on its Approach to Merger Assessments during the COVID-19 Pandemic

At the EU level, Commission staff have adapted to working from home but are aware of the challenges in dealing with tight timeframes presented by merger notifications (including securing meaningful input from industry participants which may be affected by a transaction).  The Commission has therefore issued an appeal to request parties to delay merger filings as much as possible.  Other authorities have indicated that review timeframes may be extended.
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Continue Reading Changes to Merger Rules

In these extraordinary times, economies around the World including Member States are pumping money into their economies.  Businesses and whole sectors are crying out for special support.  State support in the EEA above a low de minimis threshold is subject to strict state aid rules which requires pre-clearance by the European Commission under strict conditions. …

It is important to remember that as businesses struggle in these times to cope with issues like distribution, sourcing ingredients, components and other resources, they may look to collaborate with rivals.   In fact, many businesses have been doing exactly that.  Collaboration between competitors can be perfectly benign and may no anti-competitive effects (for example, in setting standards, lobbying efforts).  However, competition rules do apply and coordination of prices, market sharing, cost allocation, coordinated output reductions or sharing competitive sensitive information, would be prohibited.  Some restrictions are regarded as ‘hard core’ and rarely worthy of exemption (price fixing, customer and market allocations and quantity restrictions).  Penalties for infringement could lead to significant fines and possible private damages litigation.
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Continue Reading Collaboration Between Competitors in Times of Crisis

Perhaps the first authority to warn about the perceived risks, the UK’s CMA issued a warning on 6rh March 2020 to traders about taking advantage of the COVID-19 pandemic.  CMA chief executive Andrea Coscelli said: “We urge retailers to behave responsibly throughout the coronavirus outbreak and not to make misleading claims or charge vastly inflated prices. We also remind members of the public that these obligations may apply to them too if they resell goods, for example on online marketplaces.”  This warning was triggered by the rising cost of hand sanitisers.  The CMA went on to warn that it would take enforcement action against those suspected of such conduct and, if necessary, would also consider requesting the Government to introduce price controls.  It has created a taskforce to monitor market behaviour during the crisis.  Details about the Taskforce, its mandate and how to lodge complaints can be found here.
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Continue Reading Measures to Protect Against Predatory Conduct