The ACCC has just published a draft guide on sustainability collaborations and Australian competition law amid concerns about possible competition law breaches.

The draft guide is designed to help businesses understand the competition law risks that may arise when contemplating working together to achieve positive environmental outcomes. 

This comes days after the operational launch of Seamless on July 1, a national clothing product stewardship scheme that has so far attracted 62 fashion businesses.

The draft guide also explains how ACCC authorisation may be available to facilitate these agreements even if there are potential competition concerns.

“As Australia transforms to a more sustainable economy, there will be instances where businesses seek to work together to achieve better environmental outcomes,” ACCC acting chair Mick Keogh said.

“When businesses work together they sometimes risk breaching competition law, but legal protection via an ACCC authorisation may be available so that they can pursue their goals without that risk.”

ACCC authorisation provides a legal exemption from the competition provisions of the Competition and Consumer Act (CCA).

Once authorisation is granted, businesses can implement their collaboration without risk of the ACCC, or third parties, taking legal action against them for a breach of the competition provisions in the CCA.

“Broadly, the ACCC may grant an authorisation when it is satisfied that the likely public benefit resulting from the proposed conduct outweighs any likely public detriment, such as a lessening of competition,” Keogh said.

The ACCC can take a broad range of public benefits into account as part of its assessment of an application for authorisation, including those that protect the environment and promote sustainability. These could be in the form, for example, of reduced greenhouse gas emissions, benefits for biodiversity and water systems or waste reduction.

“We have a clear legal mandate to take sustainability benefits into account when considering how best to promote competition and advance the interests of consumers,” Keogh said.

“Our intention in developing this guide is to make it clear competition law should not be seen as an immovable obstacle for collaboration on sustainability that can have a public benefit.”

Keogh added that the ACCC has already authorised a wide range of agreements that have led to sustainability-related public benefits, such as industry stewardship schemes, joint buying of renewable energy, and collaboration to manage disruptions to recycling systems. 

“We would like to hear if our draft guide improves businesses’ understanding of the potential competition law risks when collaborating to achieve environmental benefits, and if it provides information about the necessary steps to address those concerns.”

The ACCC is now seeking feedback from businesses, peak bodies and other stakeholders on the draft guide. Consultation for the draft guide is now open and closes on July 26, 2024.

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