{"id":13382,"date":"2022-09-13T07:46:00","date_gmt":"2022-09-13T05:46:00","guid":{"rendered":"https:\/\/www.haslinger-nagele.com\/?p=13382"},"modified":"2022-12-29T08:12:32","modified_gmt":"2022-12-29T07:12:32","slug":"more-freedom-for-environmental-protection-and-animal-welfare-initiatives","status":"publish","type":"post","link":"https:\/\/www.haslinger-nagele.com\/en\/more-freedom-for-environmental-protection-and-animal-welfare-initiatives\/","title":{"rendered":"More freedom for environmental protection and animal welfare initiatives"},"content":{"rendered":"\n<p class=\"wp-block-paragraph\"><em>The &#8220;Green Deal&#8221; does not stop at antitrust law either. A recently enacted amendment makes it easier for agricultural producers, but also for other market participants, to cooperate in order to promote environmental protection and animal welfare.<\/em><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Elsewhere, we have already reported on national authorities\u2019 plans to make antitrust law &#8220;greener&#8221; (see <a href=\"https:\/\/www.haslinger-nagele.com\/en\/news\/environmental-protection-through-antitrust-law-is-that-possible\/\" target=\"_blank\" rel=\"noreferrer noopener\">Environmental protection through antitrust law \u2013 is that possible?<\/a>). They have now been amended by the EU legislator, at least in part.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\">A new sectoral exemption &#8211; not only &#8211; for agriculture<\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">At European level, the <a href=\"https:\/\/eur-lex.europa.eu\/legal-content\/DE\/TXT\/HTML\/?uri=CELEX:02013R1308-20211207&amp;from=EN\" target=\"_blank\" rel=\"noreferrer noopener\">Regulation on the common organization of agricultural markets in the EU<\/a> (abbreviated to &#8220;CMO&#8221;) introduced a new Art 210a at the end of 2021, which provides for a <strong>far-reaching sectoral exemption from antitrust law for sustainability cooperations lead by producers of agricultural products<\/strong>.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">However, the exception is not limited to agreements made exclusively between producers of agricultural products. As long as a producer of agricultural products is involved, other market participants at<strong> other stages along the entire production and supply chain can also be included in the cooperation<\/strong>. This is intended to enable entire &#8220;<strong>industry solutions<\/strong>&#8220;.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\">Environmental protection and animal welfare<\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">The sustainability cooperation must also serve one of the following objectives:<\/p>\n\n\n\n<ul class=\"wp-block-list\"><li><strong>Environmental protection<\/strong>, including climate change mitigation and adaptation, sustainable use and protection of landscapes, water and soils;<\/li><li><strong>Reduction of pesticide use<\/strong>; and<\/li><li><strong>Animal health and welfare<\/strong>.<\/li><\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">The decisive factor is that the agreed standard is higher than that which is already required under national or Union law. In our understanding, it must also be possible to agree on a &#8220;higher&#8221; standard even in cases where no standard has been stipulated. To arrive at a meaningful interpretation result, in such cases one would have to refer to a standard that has already been practiced or to such a standard that has possibly established itself as a minimum standard via other standards (e.g. via penal provisions such as animal cruelty or environmental hazards).<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>The decisive factor is that the restrictions on competition associated with the cooperation are indispensable for achieving this standard<\/strong>. An indispensability criterion is already known from the exemption regulation under Art 101 (3) TFEU and it must be assumed that competition authorities will also apply a similarly strict bar when applying Art 210a CMO.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\">Price agreements are not taboo (anymore)<\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">Unlike under the European Commission&#8217;s block exemption regulations, in which price agreements require a very strict case-by-case assessment,<strong> Art 210a CMO also explicitly allows price agreements<\/strong> (again: provided that they are indispensable for achieving the objective). And for good reason: the achievement of higher sustainability standards is regularly associated with additional costs, which would have to be borne unilaterally by the producers if they could not be passed on in the form of surcharges, which in turn could prevent the introduction of such measures.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">From our point of view, despite a<a href=\"https:\/\/www.bundeskartellamt.de\/SharedDocs\/Publikation\/DE\/Pressemitteilungen\/2022\/18_01_2022_Nachhaltigkeit.pdf?__blob=publicationFile&amp;v=3\" target=\"_blank\" rel=\"noreferrer noopener\"> certain reluctance on the part of the Federal Cartel Office to apply the sectoral exemption provision<\/a>, the German animal welfare initiatives (<a href=\"https:\/\/initiative-tierwohl.de\/\" target=\"_blank\" rel=\"noreferrer noopener\">Initiative Tierwohl<\/a> and <a href=\"https:\/\/qm-milch.de\/\" target=\"_blank\" rel=\"noreferrer noopener\">QM+ program for milk<\/a>) are prime examples for the area of application of the new Art 210a CMO.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Ultimately, the guidelines on the application of the provision, which are to be to be prepared and published by the European Commission by December 8th 2023, are supposed to bring more clarity. In individual cases, the Federal Competition Authority also offers an informal discussion of a (sufficiently clear) issue prior to the implementation of the planned measure, as it emphasizes in its recently published <a href=\"https:\/\/www.bwb.gv.at\/fileadmin\/user_upload\/Nachhaltigkeits-LL_fuer_oeff_Konsultation_01.06.2022.pdf\" target=\"_blank\" rel=\"noreferrer noopener\">guidelines for sustainability cooperation<\/a>.  <\/p>\n\n\n\n<h2 class=\"wp-block-heading\">Outlook<\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">It is doubtful whether the climate goals can only be achieved through market mechanisms. However, provisions such as those in Art 210a CMO can help give companies the degree of legal certainty needed to enter into new forms of cooperation to promote the common good. The restriction to the agricultural sector is rooted in the primary law of the European Union. However, a similar degree of legal certainty could already be achieved for other sectors through the <a href=\"https:\/\/ec.europa.eu\/commission\/presscorner\/detail\/en\/ip_22_1371\" target=\"_blank\" rel=\"noreferrer noopener\">revision of soft law instruments<\/a> \u2013 which is currently taking place.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Our expert <a href=\"https:\/\/www.haslinger-nagele.com\/en\/team\/alexander-hiersche\/\" target=\"_blank\" rel=\"noreferrer noopener\">Alexander Hiersche<\/a> will be happy to answer any further questions you may have on the phone or at akut@hnp.at.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\">Disclaimer<\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">This article is for general information only and does not replace legal advice. Haslinger \/ Nagele Rechtsanw\u00e4lte GmbH assumes no liability for the content and correctness of this article.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The &#8220;Green Deal&#8221; does not stop at antitrust law either. A recently enacted amendment makes it easier for agricultural producers, but also for other market participants, to cooperate in order to promote environmental protection and animal welfare.<\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_lmt_disableupdate":"","_lmt_disable":"","footnotes":""},"categories":[31],"class_list":["post-13382","post","type-post","status-publish","format-standard","hentry","category-news"],"acf":[],"modified_by":null,"_links":{"self":[{"href":"https:\/\/www.haslinger-nagele.com\/en\/wp-json\/wp\/v2\/posts\/13382","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.haslinger-nagele.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.haslinger-nagele.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.haslinger-nagele.com\/en\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/www.haslinger-nagele.com\/en\/wp-json\/wp\/v2\/comments?post=13382"}],"version-history":[{"count":0,"href":"https:\/\/www.haslinger-nagele.com\/en\/wp-json\/wp\/v2\/posts\/13382\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.haslinger-nagele.com\/en\/wp-json\/wp\/v2\/media?parent=13382"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.haslinger-nagele.com\/en\/wp-json\/wp\/v2\/categories?post=13382"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}