The Commission and the CMA (from what we can tell from its brief advice) appear broadly on the same page as to when a sustainability agreement might be exempt from competition law under Article 101(3) TFEU and section 9 CA98 respectively.
The Commission's draft Horizontal Guidelines state that Article 101(3) allows for a broad spectrum of sustainability benefits. Examples given include the use of cleaner production or distribution technologies, less pollution and more resilient infrastructure and supply chains. The CMA promises to provide further guidance on the concept (and measurement) of 'benefits' in the near future.
Crucially, both the EU and domestic UK regimes require that the customers harmed by the restrictive agreement receive a 'fair share' of the claimed benefits. On the concept of 'fair share' there is significant alignment between the Commission and CMA.
The Commission clarifies that there must be a nexus between any sustainability benefits and the consumers of the products covered by the agreement. This does not mean that the assessment of benefits to wider society plays no role in the analysis. However, a business claiming exemption does need to prove that the overall effect on consumers in the relevant market is at least neutral. The Commission refers to three categories of benefits that may be relevant in a given case:
- Individual-use-value benefits: i.e. "I, as a consumer, derive benefits from using the products covered by the agreement" (this may be e.g. in the form of improved quality/variety or lower prices/costs).
- Individual-non-use-value benefits i.e. "I value the impact of my sustainable consumption on others" (this may be e.g. in the form of willingness to pay more for a particular washing up liquid because but it pollutes the water less).
- Collective benefits i.e. benefits that occur irrespective of the consumers' individual appreciation of the product (this may be, e.g. a situation where consumers are unwilling to pay a higher price for a lesser polluting product so, to ensure that the benefits of reduced pollution from that product actually materialise, an agreement to phase out old polluting technology may be needed). These collective benefits can accrue to the consumers of the product in question (i.e. in the relevant market) if they are part of the larger group in society that benefits as a whole.
However, the Commission does clarify that the group of consumers affected by the competition restriction under the agreement, and benefitting from the efficiency, must be substantially the same. This means that it is not enough for a business to claim large benefits to society as a whole: it also has to provide evidence that those consumers under that actual agreement are left in at least a neutral position.
The Commission gives an example of a driver, who is also a citizen, who would benefit from cleaner air if less polluting fuel was used. To the extent there is a substantial overlap between consumers (drivers) and beneficiaries (citizens), the sustainability benefits of cleaner air can in principle be taken into account if they are significant enough to compensate the consumers (drivers) for the harm suffered from the restrictive agreement. Note: it also seems logical that, if it can be demonstrated that the consumers (drivers) would be willing to pay a higher price for fuel that is better for the environment anyway (i.e. as an individual-non-use-value benefit), then the benefits could be taken into account without needing to evidence the substantial overlap between consumers and beneficiaries.
The CMA, meanwhile, considers that wider 'collective' environmental benefits can already be taken into account under section 9 CA98, provided that the consumers are fully compensated for any harm suffered as a result of the agreement. The CMA considers that it has the ability to apply the 'fair share' criterion flexibly and notes that this may be an area where case law may develop further in the future, especially given, among other things, the ability for the CMA and UK courts to depart from EU precedents in certain circumstances under section 60A CA98. Therefore, at this stage, the CMA does not go into further detail – although more may be provided in its forthcoming guidance. Crucially though, the Commission and CMA appear to be on broadly the same page, even though differences may materialise as to how they reach that position.
 An environmental sustainability agreement in the case of the CMA.
 This is an area of ongoing debate across Europe, with the Dutch Competition Authority claiming full compensation is not required - https://www.acm.nl/sites/default/files/documents/acm-fair-share-for-consumers-in-a-sustainability-context.pdf