The French Competition Authority officialises its “open door” policy to help companies with sustainability projects
3 min read
The French Competition Authority (“FCA”) is committed to an “open door” policy to support companies wishing to pursue projects around sustainable development. Continuing its informal policy since 2020, the FCA has published a notice on the provision of informal guidance to companies with questions on the compatibility of their sustainability projects with competition rules.
Focus on sustainability
Sustainability is a key priority for the FCA and part of its 2023-2024 roadmap. The FCA is one of the main competition authorities taking a pioneering role in the field of sustainability, alongside the competition authorities of the Netherlands (with their joint Technical Report on Sustainability and Competition with Greece in 2021), Austria (with its sustainability cooperation guidelines in 2022), Germany (with the commission of a study on Competition and Sustainability in Germany and the EU in 2023), and the European Commission.
The FCA has demonstrated its willingness to take resolute action against anti-competitive practices that are the most harmful in terms of sustainability. Notable examples include sanctions in the sectors of floor covering in 2017 (17-D-20), road transport in 2021 (21-D-21) and food containers (presence or absence of Bisphenol B used in the interior lining) in 2023 (23-D-15). This enforcement track record highlights the necessity of the open-door policy, which provides crucial guidance to companies assessing whether their sustainability projects are compliant with competition law rules.
On which projects can companies seek guidance?
The scope of the notice is not limited to “sustainability agreements” within the meaning of the European Commission’s new Guidelines on the Applicability of Article 101 of the Treaty on the Functioning of the European Union to Horizontal Co-operation Agreements (EU Horizontal Guidelines). Parties can seek guidance on all competition-related issues, such as any unilateral project or conduct. However, merger control and State aid projects are excluded from scope.
Conditions for requesting informal guidance
Any undertaking or association of undertakings that wishes to engage in unilateral or collective conduct, that is likely to fall within the scope of competition law and for which the analysis in terms of competition law presents a particular difficulty, may submit a request for informal guidance to the General Rapporteur.
The project must:
• be at an appropriate stage of development to be examined as part of such a request (projects that are still at a purely hypothetical stage or that have already been implemented are not in scope);
• pursue one or several sustainability objectives, such as addressing climate change, preserving natural resources, reducing pollution, ensuring a fair income, or safeguarding animal welfare; and
• have a potential impact on all or part of mainland France and the overseas territories.
Prior to submitting a request for informal guidance, undertakings must conduct an initial self-assessment of their project, based on French and European decision-making practice and case law and the applicable legal texts, in particular the EU Horizontal Guidelines.
Timeline and procedural considerations
The FCA commits to inform companies within one month of whether it intends to provide informal guidance with respect to a request for informal guidance.
In cases where the FCA accepts to provide guidance on a project, it will indicate in advance the timeframe within which it will provide an informal guidance letter, which cannot be more than four months.
If the General Rapporteur deems the planned project compatible with competition rules, the informal guidance letter will state there are no grounds for investigation or for the FCA to start proceedings ex officio. The FCA may also specify any conditions or adjustments needed for compatibility. However, if the project is deemed incompatible, the letter will advise against implementing the project in its current form.
In accordance with the principle of separation of the functions of investigation and decision-making, it is important to note that any letter stating that the project can go ahead is not binding on the board of the FCA.
Global antitrust and sustainability developments
To assist you in keeping up with and navigating the current global patchwork of approaches to sustainability and antitrust, please consider consulting our interactive Global antitrust sustainability heatmap.
Lycia Ait Arab (White & Case, Law Clerk, Paris) contributed to this publication.
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