Law Council of Australia

Business Law Section

ACCC Draft Guidelines on Sustainability Collaborations

The Competition and Consumer Committee of the Business Law Section of the Law Council of Australia (the Committee) welcomes the opportunity to comment upon the draft guidelines on sustainability collaborations issued by the Australian Competition and Consumer Commission (the ACCC) on 8 July 2024 (the Draft Guidelines).

The Draft Guidelines provide an opportunity to guide parties involved in sustainability collaborations about the potential competition risks of working together and their options to address them. The Committee is of the view that the level of detail and practical examples included in the Draft Guidelines contain some welcome and helpful steps towards:

  1. ameliorating the chilling effect on businesses pursuing sustainability collaborations that are not prohibited by the Competition and Consumer Act 2010 (Cth) (the CCA);
  2. providing clarity for businesses on the types of sustainability collaborations and their corresponding risk levels;
  3. educating businesses on the broad range of possible environmental and/or sustainability consequences that may qualify as a public benefit;
  4. providing practical guidance as to the manner the ACCC assesses authorisations, including when it will adopt a streamlined process.

However, the Committee believes that the Draft Guidelines should include further detail on the ways in which sustainability collaborations may be permitted by Australian competition law other than through authorisation, in particular the exemptions that are presently discussed briefly in section 3.3 of the Draft Guidelines. While the ability to obtain authorisation is an important and, compared to many overseas jurisdictions, unique feature of Australian competition law, the Committee has received feedback that the resources, cost and time that can be involved in obtaining authorisation may represent a barrier for some sustainability collaborations, which might otherwise benefit from an exemption. The prominence given to authorisation in the Draft Guidelines means that they do not sufficiently address the underlying reasons why businesses are reluctant to engage in sustainability collaborations, which are contributing to missed opportunities in sustainability and other social areas of collaboration.

Read the full submission below.

Last Updated on 21/08/2024

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