Antitrust and Net Zero – how will the rules shift in 2022 to support transition?

The need for more action by governments, businesses and individuals to address the climate change crisis continued to rise up political and societal agendas throughout 2021, with COP26 being a key milestone in measuring global progress towards Net Zero by 2050 and setting interim actions to keep this target within reach.

In parallel, we have seen continued policy debate from antitrust authorities around the world on how antitrust and consumer protection rules and enforcement policies can support businesses’ transition to Net Zero. Despite this level of debate, some important differences in approach remain – notably around how (and when) environmental benefits should be weighed against any impact on competition, without undermining long established principles of (direct) consumer welfare – an assessment authorities are increasingly being asked to address when reviewing mergers or competitor collaborations which have environmental benefits as part of their underlying rationale.

While much of the ongoing debate has focused on how antitrust rules can enable businesses’ ”green” transformation, authorities such as the European Commission have made it clear that they intend to strengthen enforcement against any actions which could harm innovation, including so-called green “killer acquisitions” or joint “over-fulfilment” of legal requirements. Divergent views and enforcement action bring challenges for businesses engaged in cross-border sustainability initiatives. We are, however, seeing mounting pressure on policy makers to reach some consensus and reduce areas of legal uncertainty and risk, with more developed policies expected to be published by competition authorities over the coming months.

In 2022, businesses will need to navigate shifting international antitrust rules on environmental sustainability initiatives and be mindful of the associated antitrust and consumer law risks that arise when implementing Net Zero goals. Today we published our 12th edition of 10 key themes in global antitrust, which explores each of the key risks that businesses will need to consider – whether they are acquiring “green” businesses and technologies, receiving public funding for Net Zero projects, participating in Net Zero collaboration initiatives or making sustainability claims. We also discuss how businesses can mitigate risks as well as the new antitrust guidance and consultations to look out for in 2022.

Throughout the year, we will hold a number of events to discuss the implications of these and other developments. If you are interested in joining our discussions or hearing more from our global experts on these topics, do get in touch.