As COP30 draws to a close, the Autorité reiterates its commitment to supporting the transition to a more sustainable economy
Background
Sustainability, including concerns arising from climate change, is a key priority[1] for the Autorité de la concurrence. Since 2020, the Autorité has taken action across its three roles: enforcement, advisory and merger control.
The Autorité de la concurrence welcomes the call to action issued by the International Chamber of Commerce (ICC) at COP30, which reaffirms both the central role of sustainability considerations in our societies and the role of competition law in ensuring efficient markets over the short, medium and long term and thereby in supporting the ecological transition of economic models.
Sustainability and enforcement
The Autorité detects and sanctions practices by companies that not only raise competition concerns but also have a negative impact on sustainability.
For example, the Autorité fined the three leading manufacturers of PVC and linoleum flooring in France for collectively refraining from competing on the environmental performance of their products, despite this performance being one of the main criteria used by retailers, professionals and consumers (see Decision 17-D-20 of 18 October 2017). Similarly, the Autorité fined professional organisations for colluding to incite road hauliers to boycott new digital intermediation platforms offering transport optimisation services aimed at improving the sector’s environmental efficiency (see Decision 21-D-21 of 9 September 2021). Lastly, the Autorité fined three professional canning associations and the can manufacturers’ trade union for implementing a collective strategy of not competing on the presence, or absence, of Bisphenol A in food containers (cans, tins, etc.) (see Decision 23-D-15 of 29 December 2023[2]).
Sustainability and advisory
Through its advisory role, the Autorité supports public authorities in assessing draft legislation that could raise competition concerns, alongside sustainability considerations. In addition, the Autorité can start sector inquiries ex officio with a view to issuing an opinion on any competition-related matter, and has used this power on several occasions to inform and guide the behaviour of economic actors regarding competition issues in markets of significance for the ecological transition.
For example, at the request of the French Minister of the Economy and Finance, the Autorité issued an opinion expressing reservations on a draft ministerial order (arrêté) proposing a new organisation for the extended producer responsibility (EPR) scheme for household plastic packaging, and establishing a mechanism for eco-organisations to balance their obligations to collect and recycle certain specific waste streams (see Opinion 22-A-05 of 16 June 2022). This opinion, like the one issued in 2021 on the implementation of a new EPR scheme for used oils, whose recommendations were incorporated into the final legislation (see Opinion 21-A-13 of 11 October 2021), forms part of a series of more than half a dozen opinions issued by the Autorité since its creation on EPR schemes within the circular economy[3].
At its own initiative, the Autorité also conducted an unprecedented stocktaking exercise in the land passenger transport sector. This opinion assessed the effectiveness of the implementation of the Autorité’s past recommendations in a key sector for both the proper functioning of the economy and the fight against climate change, and also updated the Autorité’s analysis to incorporate intermodality and sustainability considerations and take account of legislative and regulatory developments (see Opinion 23-A-18 of 29 November 2023). Similarly, the Autorité issued an opinion at its own initiative on the functioning of electric vehicle charging infrastructure (EVCI), a sector that is crucial for the decarbonisation of the economy. In particular, the opinion examined the deployment and pricing of EVCI, as well as the development of associated services (see Opinion 24-A-03 of 30 November 2024). Lastly, the Autorité issued an opinion on the emerging sector of environmental rating systems, analysing how their design and implementation affect the competitive landscape (see Opinion 25-A-01 of 9 January 2025).
Sustainability and merger control
In merger control, the Autorité ensures that notified transactions do not harm competition, in particular by reducing innovation. With regard to sustainability, it ensures that companies continue to develop new technologies, expertise and products that improve environmental outcomes. Moreover, the Autorité has long identified specific markets for products with a sustainability dimension.
For example, during its review of the acquisition by Storengy, a subsidiary of Engie, of a stake in the capital of DMSE, the Autorité examined, for the first time, the markets for hydrogen production and distribution and the development of hydrogen stations. It concluded that a specific market for the supply of green electricity exists, given its imperfect substitutability for a growing number of consumers with traditional electricity (see Decision 21-DCC-18 of 29 January 2021). In addition, in Decision 21-DCC-161 of 10 September 2021 clearing the acquisition by Carrefour of 100 Bio c’Bon stores subject to conditions, the Autorité considered the existence of specific supply streams and consumer preferences for organic products in its analysis of the relevant markets. Lastly, during its review of the acquisition by the Ardian group of Société du Pipeline Méditerranée-Rhône (SPMR), a hydrocarbon pipeline operator, the Autorité noted that environmental efficiency gains could be taken into account, even though such gains were not demonstrated in this case (see Decision 21-DCC-79 of 12 May 2021).
Informal guidance
Lastly, the Autorité has an “open door” policy whereby any stakeholders that are pursuing projects with a sustainability objective can ask the General Rapporteur for informal guidance on the assessment of their compliance with competition rules.
All of the work outlined above is performed with the existing legal framework, in compliance with European and national law, and without reinterpreting the objectives of competition law aimed at promoting consumer welfare.
Economic operators wishing to develop projects with a sustainability objective, but for which the analysis with regard to competition rules would be particularly complex, can ask the Autorité for guidance so they can better self-assess the compatibility of their projects with competition law.
To that end, the Autorité has established an “open door” policy. Its notice of 27 May 2024 outlines the conditions under which project developers may request informal guidance from the General Rapporteur, explains how their request will be processed and the related timelines, and specifies the scope of the informal guidance provided. Where applicable, the informal guidance may set out the conditions or adjustments under which the planned project would appear compatible with competition law.
The General Rapporteur has already issued guidance on several projects: (i) a standardised methodology for calculating products’ environmental footprint, presented by two professional organisations representing actors in the animal nutrition sector; (ii) the creation of a system for the collective financing of the additional costs and risks associated with the agro-ecological transition, bringing together numerous stakeholders in the value chain across several regions; and (iii) the creation of a platform for collecting and sharing data on suppliers’ carbon footprints in the retail sector.
[1] Roadmap of the Autorité de la concurrence for 2025-2026.
[2] Decision subject to an appeal before the Paris Court of Appeal.
[3] Opinion 10-A-21 of 19 November 2010; Opinion 12-A-17 of 13 July 2012 on the waste management sector covered by the extended producer responsibility principle; Opinion 16-A-14 of 10 June 2016 on the management of hazardous healthcare waste; Opinion 16-A-27 of 27 December 2016 on opening the household packaging waste sector to several eco-organisations; Opinion 20-A-10 of 13 November 2020 on a draft decree on the management of waste from sharps medical devices used by self-treating patients.
Contact(s)
