Asia-Pacific

Horizontal Agreements in the Environmental Context: In 2020, the OECD issued a paper that discusses whether competition policy should be influenced by sustainability. The 2020 paper follows the OECD's 2010 paper, which considers, from national perspectives, the interaction between horizontal agreements with environmental goals and competition law policies.

The 2020 paper also analyses the substantive application of competition law to sustainability issues by exploring the extent to which competition law can be interpreted in a way that fosters or limits sustainability initiatives. In addition, Australia and New Zealand, Germany, Greece, Lithuania and the Netherlands have submitted contributions to this discussion. The OECD's 2020 paper provides a thorough introduction to the state of play of sustainability in the context of competition law. It encourages agencies to be clear about their objectives and priorities in order to provide clarity on how sustainability fits into competition law, with formal and informal guidance emphasised. It also examines approval procedures, sandboxing, admissible evidence, capacity, fining, and international co-operation as possible measures to further sustainable goals. In December 2021, the OECD roundtable assessed these issues again and published a follow-up paper specifically on environmental considerations in competition enforcement. Additionally, the 2022 OECD Competition Open Day addressed, inter alia, Green Innovation. In December 2022, OECD Global Forum on Competition will discuss the goals of competition policy including the question on whether "competition law and policy needs to adapt as a policy instrument to better accommodate socio-economic trends such as the rising importance of sustainability".

ACCC's authorisation of sustainability cooperations and mergers based on the public benefit test: The Australian Competition and Consumer Commission ("ACCC") administers an ex-ante approval procedure, whereby the ACCC may provide statutory protection from legal action against mergers or restrictive trade practices that may reduce competition if there is a net public benefit. Some sustainability initiatives have been considered to satisfy that test. Examples include initiatives whereby a levy was authorised for schemes which promoted recycling and environmentally conscious disposal, such as the Battery Stewardship Scheme, Tyre Stewardship Scheme, and a paint collection and disposal scheme.

The ACCC has also recognised the environmental benefit of the reduction of greenhouse gas emissions in its authorisation of:

(i) the Barwon Region Renewable Energy Project, a Western Australian Local Government Association energy group, and Equinix Australia, which in each case created joint, renewable energy purchasing groups to pool electricity demand and jointly tender for Power Purchasing Agreements;

(ii) collective bargaining for waste disposal in respect of a renewable organics network project; and

(iii) joint purchasers for a large-scale renewable wind energy project.

More generally, the ACCC has considered environmental benefits when granting a number of recent authorisations to local councils for the collective tendering of recycling services and e-waste collection. In June 2023, the ACCC granted conditional authorisation to the major supermarkets, allowing them to collaborate in managing the soft plastics stockpile and resume in-store collections after REDcycle suspended its recycling operations. The authorisation was held to be in the public interest, due to public concern about the need to divert soft plastics from landfill and the resumption of in-store soft plastic collections.

In October 2023, the ACCC granted conditional authorisation to a consortium led by Brookfield and EIG Partners to acquire Origin Energy on the basis that the proposed transaction gave rise to public benefits in the form of accelerating Australia's energy transition. While the acquisition ultimately did not proceed, the decision was notable as the ACCC concluded that the proposed transaction substantially lessened competition but authorised it under the net benefit test based on environmental grounds.

In announcing the ACCC's enforcement and compliance priorities for 2024-25, the Chair of the ACCC, Ms Gina Cass Gottlieb, announced that, as part of its continued focus on competition concerns relating to environmental claims and sustainability, the ACCC will this year issue guidance in relation to how the regulator proposes to recognise the public benefit of facilitating the energy transition and improvements in sustainability when assessing conduct authorisations.

ASIC's focus on greenwashing practices: The Australian Securities & Investments Commission ("ASIC") highlighted its continuing focus on greenwashing practices by again including it as an enforcement priority in 2023-24. In its most recent report of its regulatory investigations, ASIC details that, from 1 July 2022 to 31 March 2023, ASIC intervention resulted in:

(i) 23 corrective disclosure outcomes;

(ii) 11 infringement notices issued; and

(iii) in one case, the commencement of civil penalty proceedings.

ASIC commenced its first court proceedings alleging greenwashing conduct in February 2023. In civil penalty proceedings commenced in the Federal Court against Mercer Superannuation (Australia) Limited, ASIC alleges Mercer made misleading statements about the sustainable nature and characteristics of some of its superannuation investment options. The hearing concluded on 7 December 2023, with judgment reserved.

This was followed by the commencement of proceedings against Vanguard Investments Australia in July 2023. ASIC alleges Vanguard engaged in misleading conduct in relation to claims about certain ESG exclusionary screens applied to investments in a Vanguard fund. The matter is scheduled to be heard in March 2024.

Proceedings were also commenced against LGSS Pty Ltd ("Active Super") in August 2023, alleging ESG misrepresentations were made on Active Super's website and disclosure documents, plus its Facebook, Instagram and LinkedIn accounts, relating to claims it was an ethical and responsible superannuation fund. The proceeding has been provisionally listed for a liability hearing in March 2024.

ASIC has published an information sheet providing guidance how to avoid greenwashing when offering or promoting sustainability-related products.

ACCC's monitoring of greenwashing: ACCC continues its focus on environmental claims and sustainability in its Compliance and Enforcement Priorities for 2023/2024. First introduced as a priority in 2022/2023, the ACCC broadened the scope of this priority from consumer and fair-trading issue to now include product safety and competition concerns. In a speech announcing the 2023/2024 priorities, Chair of the ACCC, Ms Gina Cass-Gottlieb remarked that "misleading claims about environment or sustainability credentials have an impact right across the economy." Announcing the establishment of a new ACCC internal taskforce focused on sustainability issues, Ms Cass-Gottlieb noted the ACCC's role in the transition to a greener economy extends to competition issues. Changing industries and demand for new infrastructure create the potential restrictive behaviour from incumbents, and disruption that may impact the provision of products and services.

In December 2023, the ACCC published its final guidance on the application of the Australian Consumer Law ("ACL") to environmental and sustainability claims. The guidance sets out the ACCC's views on good practice for businesses to ensure their environmental and sustainability claims are not misleading. The guidance contains eight principles supported by examples to guide businesses as to what the ACCC views as acceptable or otherwise. Broadly, the examples indicate that the ACCC sees a need for greater specificity in environmental claims and will not tolerate broad brush statements or representations that are only partially true. For example, rather than making blanket statements like "green energy," an energy company should clarify what aspect is "green," such as "100% wind-generated electricity." The guidance follows an internet sweep conducted by the ACCC in October/November 2022 to identify misleading environmental and sustainability marketing claims. The ACCC published its findings in March 2023. The sweep reviewed 247 businesses and found 57% made "concerning" environmental claims, including:

(i) using vague or unclear environmental claims;

(ii) not providing sufficient evidence for their claims;

(iii) setting environmental goals without clear plans for how these will be achieved; and

(iv) using third-party certifications and symbols in a confusing way.

In publishing its final guidance, the ACCC reissued its previous public warning for businesses to be prepared to substantiate their environmental claims, as false or misleading claims undermine consumer trust and confidence in the market.

In November 2023, the ACCC accepted a court-enforceable undertaking from MOO Premium Foods Pty Ltd ("MOO"), a yoghurt manufacturer, after investigating its claims that its yoghurt tubs were made from "100% ocean plastic." Despite disclaimers, the ACCC found MOO's representations were misleading and likely contravened the ACL as the plastic used was sourced from coastal areas in Malaysia and not directly from the ocean. MOO agreed to remove the misleading claims, commit to conducting internal audits and implement an ACL compliance programmme.

The ACCC has indicated that it will release further guidance for businesses and consumers on emission and offset claims, as well as the use of trust marks in early 2024.

Climate-related financial disclosures: Following two rounds of consultation, the Australian Government has released an exposure draft of the Treasury Laws Amendment Bill 2024: Climate related financial disclosure (Draft Bill), which would introduce mandatory, internationally-aligned climate-related financial disclosures from the 2024/25 financial year. If passed, the Draft Bill will establish a regime that requires entities that meet statutory sustainability reporting thresholds to report and maintain records regarding climate-related financial risks and opportunities, including in respect of greenhouse gas emissions, governance, risk management and emissions reduction targets.

White & Case Contacts:

Belinda Harvey, Partner, Sydney

Stefanie Benson, Partner, Sydney

Anti-Monopoly Law 2022: Under the law, undertakings may benefit from an exemption when concluding horizontal agreements or RPM agreements, or when providing material assistance to the conclusion of such agreements by other undertakings. This is if they can demonstrate that the agreements are aimed at achieving energy savings, environmental protection, disaster relief, and such other public interests. To qualify for an exemption under efficiency grounds, the applicant has to show that the agreement concluded will not seriously restrict competition in the relevant market and that it will enable consumers to share the resulting benefits. There are no available cases yet where an otherwise anti-competitive agreement was successfully defended on this basis.

Auto-industry guidelines 2019: New electric vehicles manufacturers may benefit from an exemption for RPM agreements for an introductory period. State Administration for Market Regulation ("SAMR") suggested a promotional period of nine months, although the time limit is subject to adjustments based on actual industrial and technological developments.

Green Guidelines: The achievement of a green society is high on the JFTC's agenda. On 31 March 2023, the Japan Fair Trade Commission ("JFTC") published the "Guidelines Concerning the Activities of Enterprises, etc. Toward the Realization of a Green Society Under the Antimonopoly Act" ("Green Guidelines"). The Green Guidelines are organized in five chapters, including Joint Activities (Part I), Restraints on the Business Activities of Trading Partners and Selection of Trading Partners (Part II), Acts Constituting Abuse of Superior Bargaining Position (Part III), Business Combinations (i.e. mergers) (Part IV) and Consultation with the JFTC (Part V). In cases where efforts by businesses are expected to have both pro- and anti-competitive effects, the JFTC will consider whether such efforts violate the Anti-Monopoly Act ("AMA"). The JFTC will comprehensively review the pro- and anti-competitive effects arising from such efforts, taking into consideration (a) the rationality of purpose, and (b) the reasonableness of means (e.g. whether there are other less restrictive alternative means).

In February 2024, the JFTC launched a public consultation for a revision of the Green Guidelines. The revisions are aimed at providing further clarifications on circumstances under which joint disposal of facilities or joint procurement are not problematic under the AMA.

Consultation cases: There are three JFTC consultation cases in which the JFTC concluded that co-ordination among competitors does not violate the AMA because the relevant objective was legitimate, and the co-ordination was necessary. Concerning the "Consultation case related to joint activities aiming to achieve carbon neutrality by constituent enterprises of a petrochemical complex" four companies that manufacture and sell petrochemical products in petrochemical complexes consulted with the JFTC about joint activities for the purpose of achieving carbon neutrality. The JFTC concluded that the joint activities in question will not cause a substantial restraint of competition, including in the market for manufacturing and sales of products manufactured by the four companies in the industrial complex and in the markets for purchasing ammonia and/or biomass. Therefore, the JFTC concluded that they do not pose any problem under the AMA. In Case No. 12 of FY2019 JFTC consultation cases, the JFTC concluded that a retailer trade association's plan of implementing new guidelines for its members to not provide conventional plastic bags, and to provide lower environmental impact plastic bags instead, charged to customers at three yen (approximately three € cents), does not violate the AMA. This is because, inter alia, it has a legitimate objective based on the plastic resource recycling strategy promoted by the Government of Japan, and the plan in question is within the reasonable scope of the objective. (Another pertinent JFTC consultation case from FY2007 is available at pp.6 -7 here).

Sector inquiries: On 16 October 2023, the JFTC published the Market Study Report on the Recycling of Used Plastic Bottles. In a nutshell, the message is that the JFTC will enforce the AMA when it finds antitrust concerns that may interfere with the recycling of used PET bottles.

White & Case Contact:

Takako Onoki, Counsel Tokyo

NZCC's authorisation of sustainability cooperations and mergers based on the public benefit test: New Zealand's law enables the New Zealand Competition Commission ("NZCC") to authorise a merger, acquisition or contractual arrangement that otherwise substantially lessens competition in a market if the benefits to the public outweigh the detriments (the "public benefit test"). Whilst economic efficiencies are a typical example of relevant benefits, the New Zealand courts have recognised benefits beyond economic efficiencies when assessing the public benefit test, including "environment, health or social welfare" benefits. The NZCC has previously considered benefits such as "reduced pollution or other environmental improvements" and detriments such as "adverse effects on the environment" in its assessment.

Exception to cartel prohibition for cooperations between competitors: Section 31 of the Commerce Act provides an exception to the cartel prohibition for "collaborative activities" between competitors (such as joint ventures) that are not for the dominant purpose of lessening competition between the competitors, provided that any cartel provisions that are part of the collaboration are reasonably necessary for that legitimate purpose. This exception does not provide protection from the prohibition on arrangements that substantially lessen competition in a market (only from the cartel prohibition), but such arrangements can be authorised by the NZCC if the benefits to the public outweigh the detriments (as described above).

Collaboration and Sustainability Guidelines: In November 2023, the NZCC issued guidance for businesses considering collaborating with their competitors to reach joint sustainability goals. The guidelines recognise that, as businesses consider their response to New Zealand's climate change and sustainability goals, competitor collaboration may sometimes be necessary to overcome the challenges that individual businesses may face. The guidelines set out the factors that the NZCC may consider when assessing collaboration between competing businesses for sustainability objectives.

Decisional practice: The NZCC has recognised sustainability benefits in several authorisation decisions to date, for example, in Refrigerant License Trust Board and Nelson City Council and Tasman District Council. However, in Nelson City Council and Tasman District Council, the NZCC, whilst recognising environmental benefits, did not consider these benefits to be determinative in its final decision. The NZCC noted in its December 2020 "Sustainability and Competition" submission to the OECD that "generally, these benefits were unable to be quantified and did not materially affect the NZCC's final determination". This demonstrates that it may be difficult to rely on environmental benefits alone to justify authorisation where an arrangement has the effect of substantially lessening competition in a market (but the weighing of environmental benefits against competition detriments will always be fact-specific in any given case).

NZCC's focus on greenwashing: The NZCC has in place 'Environmental Claims Guidelines' for businesses to understand their obligations when making environmental claims or 'green marketing'. The guide includes specific criteria to follow, such as substantiating any green claims made and being specific in the information provided to consumers. 
In its 2022 Annual Report, published on 7 February 2023, the NZCC reported that it had issued warnings after investigations into environmental and sustainability claims by Glopac and Chilltainers. The warnings led to a change in their marketing, packaging and information approach. Representations as to recycling were made on hot drink cups (Glopac) and cardboard food packaging (Chilltainers) but the products could not be recycled in New Zealand in either situation.

White & Case Contacts:

Belinda Harvey, Partner, Sydney

Stefanie Benson, Partner, Sydney

Guidance Note on Business Collaborations: In March 2024, the Competition and Consumer Commission of Singapore ("CCCS") has issued a Guidance Note on Business Collaborations pursuing environmental sustainability objectives to provide greater clarity to competing businesses on how to pursue such business collaborations without harming competition. Environmental sustainability objectives refer to objectives related to reducing or mitigating negative environmental impact, such as climate change mitigation measures, improving air and water quality, efficient use of natural resources, and biodiversity preservation.

Anti-competitive agreements may qualify for the Net Economic Benefit Exclusion: The Guidance Note sets out three types of agreements: (i) agreements that are unlikely to raise competition concerns; (ii) agreements where competition concerns are less likely to arise if certain conditions are met; and (iii) agreements which may be problematic from competition law perspective. The agreements which give rise to competition concerns may still qualify for the Net Economic Benefit Exclusion; provided that: (i) the agreement leads to economic benefits; (ii) these economic benefits cannot be achieved without the agreement and any restrictions in it; and (iii) competition is not eliminated in a substantial part of the market.

Notification process: If businesses want to have more certainty to make sure their agreement does not infringe competition law, they can notify CCCS for assessments of collaborations pursuing environmental sustainability objectives.