Historically at least, it has been difficult to obtain an individual antitrust exemption under UK (and EU) antitrust law. To profit from an exemption under existing law, end-consumers need to get a "fair share" of the benefits produced from the anticompetitive arrangement. When it comes to sustainability collaboration the policy debate centres on whether it is fair for some groups of consumers to be harmed by collaboration between competitors (say by paying higher prices for 'green' products) just because wider society benefits from that collaboration, or whether traditional antitrust principles need to remain firm.
The European Commission's guidance suggests that while the wider ecological benefits of an agreement can be considered, the group of consumers affected by the competition restriction in the agreement, and benefitting from the efficiency, must be "substantially the same" and the disadvantaged consumers must be "fully compensated" by the environmental gains produced. In other words, for an agreement to be exempted, it is not enough for a business to claim large benefits to society as a whole.
The CMA may take a slightly more permissive approach. It seems that parties will still need to demonstrate the arrangement's substantial contribution to tackling climate change. However, the wider consideration (i.e. the "full benefits to UK society which derive from the agreement") are to also be relevant to that assessment. Further, it seems that it will be enough for the disadvantaged consumers to merely "form part of the wider group of consumers who benefit from the agreement".
However, the CMA's nod to more flexibility is only one part of ongoing global changes to antitrust enforcement in the ESG sphere. Even within the EU, regulators are taking divergent approaches, with the Dutch, Austrian and Greek authorities being the boldest in their efforts to avoid antitrust becoming a barrier to climate change cooperation. The US position is particularly important: not only do US antitrust authorities currently seem to be taking a more conservative, orthodox approach to analysing climate change cooperation, but firms also face the risk of private antitrust litigation, with the possibility of having to pay treble damages. This is not just a theoretical concern – a number of US federal and state elected officials, and individuals at the enforcers have already raised antitrust concerns with certain ESG initiatives, including those involving asset managers.
In any cross-border initiative, firms therefore need to be mindful of the developing patchwork of guidance and enforcement practices, calibrating their levels of cooperation by reference to the most restrictive regime.