Sustainability agreements: French competition authority Guidance

On 27 May 2024, the French Competition Authority (FCA) published its notice on the informal guidelines on sustainability¹, in line with its 2023-2024 roadmap, which states that sustainable development is one of its priorities.

The draft notice was the subject of a public consultation, and the final notice contains a number of adjustments and clarifications.

The notice sets out the framework within which the FCA will be able to respond informally to requests from companies that have questions about the compatibility of their sustainability projects with the rules of competition law.

While self-assessment by companies remains the principle, the FCA is committed to an "open door" policy by encouraging companies to submit their projects to it, in line with the approach initiated by the European Commission in its new guidelines on horizontal cooperation agreements².

The conditions under which companies request informal guidance

Companies and associations of companies may submit a request for informal guidance to the general rapporteur when the project:

• is at a stage of development where it can be examined;
• pursues one or more sustainability objectives; and
• has a potential impact on all or part of France.

The application requires an initial self-assessment of the project by the applicants. The notice details all the information and documents to be provided.

The processing of requests for informal guidance by the general rapporteur

1. The general rapporteur first assesses whether the request for informal referral should be processed, taking into account whether:

• there is an identical or similar project under investigation;

• another authority is examining a similar application; or

• an in-depth examination is necessary.

2. The general rapporteur informs applicants within a maximum of one month whether or not he intends to provide informal guidance.

If so, it then bases its analysis on the information provided, as well as on any public information or information of which it is aware.

3. Subject to acceptance by the applicants, the general rapporteur may share the information transmitted with the European Competition Network, the DGCCRF or any other public authority that may be concerned.

Companies can withdraw their application at any time. Then, no informal guidance is issued and all the information provided is returned.

The scope of informal guidance letters

At the end of the review, the general rapporteur sends an informal guidance letter to the applicants within a maximum of four months.

1. Signed by the rapporteur, the letter contains a summary of the facts as well as the legal reasoning concerning the application of the competition rules to the planned project.

2. The letter states whether or not the project is compatible with competition rules.

It can specify the adjustments that need to be made for the project to be compliant or, on the contrary, invite the companies concerned not to implement it.

3. Nevertheless, the letter will not prevent the general rapporteur from questioning the initial analysis in the future.

Without being bound by the guidance letter, the board of the FCA will take it into account if it is subsequently seized of a case relating to the implementation of the project concerned.

4. Finally, the letter is published on the FCA's website, subject to acceptance by applicants.

¹Notice on informal guidance from the FCA in the area of sustainability, 27 May 2024
²European Commission, Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements (2023/C 259/01), 21 July 2023, paragraphs 515 and seq.