ICC releases guidance on competition law and sustainability initiatives

Publication comes as trade body issues call for authorities to provide legal clarity and early guidance on anti-trust at COP30.

The International Chamber of Commerce (ICC) has published on how to navigate corporate competition law when participating in sustainability initiatives.  

The document gives examples of agreements and activities that are permissible under competition and antitrust laws in the EU, UK and US, along with areas where it is less clear cut.   

It highlights the legal challenges of competitors sharing sensitive information. 

While authorities in places like the UK and EU have accepted that pooling sustainability information can help further legitimate objectives, ICC said companies still needed to make sure they stayed on the right side of the rules. 

“Sharing confidential, commercially-sensitive information between competitors, formally or informally, including through trade associations, requires great care,” it wrote. 

The safest approach is to seek legal advice, it added, which could include a recommendation to have data collected by a third party, and disclosed only in certain ways.  

“Generally speaking, any justification of sustainability agreements will need to be analysed robustly and supported by economic data to ensure compliance,” said ICC. 

Initiatives based on giving preferential treatment to more sustainable suppliers require “in-depth consideration”, it added.  

ICC acknowledged that things are particularly challenging in the US, where an “increasingly partisan and political” approach to antitrust laws have made it riskier to pursue collaborative sustainability initiatives. 

Unlike many European jurisdictions, lawmakers in the US have not provided safe harbours for companies seeking to participate in such initiatives. 

This means firms must be “proactive in avoiding pitfalls” when it comes to compliance, ICC said. 

Even though it’s “very hard to establish an unlawful agreement” around industry-led standards in the US, the cost of defending a case can still be prohibitive, it noted.  

Companies can take precautions, such as focusing on “business practices” rather than “specific businesses or companies”.  

The trade body, which is the UN’s official business representative for the current COP30 climate summit, also called on authorities to provide more legal clarity on anti-trust laws, to help unlock the collective power of corporate sustainability initiatives.