ESG And Antitrust: The Austrian Rules Exempting Environmental Collaborations Explained

In September 2022, the Austrian Federal Competition Authority (FCA) published its Guidelines on sustainability cooperation agreements between companies (Guidelines). The Guidelines explain how to assess these agreements under the sustainability exemption, which was introduced a year earlier.

Background

Section 2(1) of the Austrian Cartel Act is the equivalent of Article 101(3) TFEU. It establishes an exemption from the ban on agreements that restrict competition, provided certain cumulative conditions are met.

In September 2021, Section 2(1) was amended, expanding the scope in favor of certain sustainability agreements.

Before the revision, agreements that lead to efficiencies in the production or distribution of goods or "to promote technical or economic progress" could be exempted under certain conditions, including the requirement that consumers receive a fair share of the resulting benefits.