Managing competition law risks in the race to net zero

Tackling the climate change challenge calls for a response that is both quick and collective. However, sustainability strategies and solutions which involve agreements between competitors or customers and suppliers, or representations about environmental credentials, may raise significant competition and consumer law risks.

Although these legal risks are not novel, the climate change context is. Recognising this, this article explores the nexus between competition law and sustainability initiatives in the infrastructure sector, examining common competition law risks across five key areas:

1. Industry collaboration agreements

2. "Greenwashing" and the rising trend of green claims

3. ESG considerations in mergers and acquisitions

4. Exclusivity obligations

5. Competition between states

THE ROLE OF SUSTAINABLE AND RESILIENT INFRASTRUCTURE

Given its share of greenhouse gas (GHG) emissions, decarbonising infrastructure is considered vital in the long-term transition to net zero and achieving the goal of limiting the increase in global warming to 1.5% above pre-industrial levels as per the Paris Agreement.

It is important not only that an asset is constructed from sustainable materials so that is has a meaningful effect on emissions reductions, it must also be sustainable in terms of daily operations. Research by the Global Infrastructure Hub estimates that infrastructure is responsible for more than half (approximately 53%) of total GHG emissions.¹ Of this, only 10% is attributed to emissions from the construction process, with the remaining 43% a result of operational emissions, including electricity use in buildings, and road transportation.

Adapting infrastructure to withstand the impacts of climate change is also high on the priority list, as fears mount over the compounded impacts on infrastructure of wildfires, floods, droughts, heatwaves, storms and rising sea levels driving a transition to infrastructure that is not only sustainable, but also climate-resilient.

These emerging challenges call for new approaches and new technologies, neither of which are cheap. Collaboration and innovation have been touted as key to achieving the collective goal of sustainable and resilient infrastructure. However, this has to occur in a manner consistent with existing competition and consumer law regulations, which exist to protect economies, markets and consumers.

INTERSECTION OF NET ZERO, INFRASTRUCTURE, AND COMPETITION LAW

The “net zero” label has never been more attractive for companies. The recent conclusion of COP26 placed the challenges posed by climate change at the forefront of government and business agendas alike, with increased urgency. With most G20 countries now having pledged carbon neutrality by 2050 the “race to net zero” is definitely on², and private industry is rallying to show its commitment to the cause.

For the infrastructure sector, it is now a matter of how quickly and efficiently infrastructure planning and implementation can pivot to meet this goal. The sector’s vast scope makes this no easy feat – infrastructure spans all industries, including transport, the built environment, water and waste, meaning there’s no “one size fits all” solution nor any single entity that can alone effect the requisite change.

That said, any collaboration between businesses, particularly competitors, as well as how a company publicises and reports on its environmental, social and governance (ESG) efforts, requires careful risk management to avoid infringing competition and consumer law.

Competition law promotes market competition through the regulation of anticompetitive conduct by companies. The goal is to benefit consumers and business by keeping prices low, while the quality, quantity and variety of goods and services remain high. Importantly, a competitive market also stimulates enterprise and efficiency, encouraging business to improve and innovate, which benefits customers.

While some competition regulators have voiced their support for the transition to a low-carbon economy³, competition law is yet to recognise any overarching exemption or defence for ESG-related matters, meaning the law still applies to conduct regardless of any ancillary ESG objectives.

Avoiding breaches of competition law when pursuing ESG initiatives is imperative, as the consequences of a breach are severe. Not only do companies face significant fines, in numerous jurisdictions (e.g., the UK and Australia) the individuals involved may incur substantial pecuniary penalties, be disqualified from managing corporations, and even face potential imprisonment where found to be criminally liable. Additional consequences of a breach include adverse publicity and reputational damage, commercial consequences such as void contracts, and significant cost, all of which may prove crippling to both the business and the individuals involved.

Key to keeping within the bounds of the law is ensuring that firms neither collaborate nor use misleading advertising or reporting to the detriment of consumers.

Importantly, contravention is not always obvious. Cooperation between firms may be illegal despite any legitimate basis for that cooperation, such as furthering ESG initiatives; and the complexity of certain ESG measures, such as emissions reduction calculations, means it can be easier than expected to cross the line into false or misleading conduct. Pressure from governments and/or industry to resolve or meet certain ESG goals is also no excuse.

However, amid the challenges, equally significant opportunities await companies willing to adapt within the bounds of the law.

INDUSTRY COLLABORATION - ILLEGAL COLLUSION OR PRO-COMPETITIVE COLLABORATION?

As pressure mounts to strengthen ESG performance, companies are increasingly seeking to collaborate in the innovation and implementation of sustainability-related strategies.

This growing movement has seen such arrangements take on their own colloquial term – “sustainability agreements” – which refers to collaborative arrangements between businesses (including industry-wide initiatives and decisions of trade associations) to achieve sustainability goals and tackle climate change. For example, businesses may agree to work together to reduce their carbon footprint, improve environmental credentials of their products, set environmental standards, reduce environmentally harmful substances or determine how to handle the costs of environmental protection measures.

However, competition law does not always make it easy to legally advance ESG initiatives, at least where collaboration is involved. Although a collaborative approach may be well intentioned and effective in using pooled knowledge and resources to foster enterprise and innovation, it will nonetheless be illegal where it is found to have an anticompetitive purpose or effect – such as conduct that amounts to a cartel or an otherwise anticompetitive arrangement or concerted practice.

While in theory such anticompetitive conduct may seem obvious, in reality, there is not always a clear line between collaboration that which is permitted and that which is illegal. Caught up in the drive to transition to a greener future, infrastructure companies may not realise when they are approaching the risky territory. In light of this, we highlight the following scenarios, which we believe present key risks for the infrastructure companies engaging in collaboration.

New industry standards

Sustainability agreements commonly involve standard-setting arrangements by which businesses, often through trade associations or standardisation organisations, set standards for the environmental performance of products, production processes, or the resources used in production.

Although cooperation on standard-setting may be legal in many scenarios, new industry standards that are accompanied by agreements to exchange information on the progress being made to achieve them, could amount to a concerted practice or cartel if care is not taken to monitor the nature and volume of information being exchanged, or if the standards affect the price, production, market-allocation or other features of products or services being supplied into the market by the parties to the agreement. Companies must remember that competition rules will apply even where the standard is developed to pursue a legitimate objective and/or meet regulatory standards.

For example, a company wants to set a new emissions target to reduce GHG emissions. However, the costs of doing so will inevitably filter down to customers, creating the real risk that the company will lose business to competitors who are able to continue to maintain lower costs. One solution is for the company to agree with their key competitors that they will all comply with the target, by implementing an industry standard which includes passing agreed buckets of costs through to end users – thus removing the “first mover disadvantage”.

Without any applicable defence or authorisation, such conduct may constitute an illegal cartel, or an otherwise anticompetitive arrangement or concerted practice, regardless of any wider environmental advantages.  The Australian Competition and Consumer Commission’s (ACCC) prosecution of the “laundry detergent cartel” highlights the risk of how a sustainability initiative, in this case an agreement to undertake an industry-wide transition to ultra-concentrated laundry detergents, can lead to allegations of anticompetitive conduct. In 2013, the ACCC took action against Cussons, Colgate and Woolworths for allegedly colluding to cease supplying standard concentrate detergent while simultaneously moving to the supply of ultra-concentrated detergent. Despite the environmental benefits of the agreement (less laundry liquid means lower-cost transportation and less packaging, chemical effluent, and retail/warehousing space), the ACCC prosecuted the conduct on the basis that, among other things, the parties had agreed that the laundry detergent producers would maintain the price of their products rather than passing on any cost savings to customers.

Importantly, an actual anticompetitive effect (such as a material and sustained price increase) is not required for the conduct to breach the law (although this will make it riskier), as the purpose or likely effect of either “price-fixing” (for cartel conduct) or substantial lessening of competition (for anticompetitive arrangements) will trigger the prohibitions. Although the more sustainable option will not always result in higher costs, it is often the higher cost which drives the need for collaboration, leaving companies with what appears to be a difficult choice – risk breaching competition laws in efforts to collaborate to further ESG goals or stick to unilateral conduct and risk being left behind.  Notwithstanding, legal advice can remove this apparent ultimatum and enable companies to avoid the risks inherent in collaboration, while enjoying the rewards.   The German FCO’s offer to “advise businesses on cooperations and provide guidance especially on how to ensure that sustainability strategies are embedded in competition law” is just one example of this shift, with the regulator recently reviewing three separate collaborations between competitors involving  sustainability initiatives:⁴ an initiative launched by the German Development Organisation and German retailers to support living wages in the banana sector by increasing purchases of bananas grown and sold by farms providing “living wages” for their workers; an animal welfare initiative between the agricultural, meat production and food retail sectors to reward livestock owners for improving the living conditions of animals; and a milk surcharge initiative between German milk producers involving the introduction of standard surcharges in favour of raw milk producers.

In summary, the FCO did not express any competition concerns about the banana sector project as the cooperation did not involve the exchange of procurement prices, other costs, production volumes or margins nor the introduction of compulsory minimum prices or surcharges. The FCO was more critical of the animal welfare initiative as it involved a standardised payment to livestock owners; however ultimately it was prepared to accept the scheme for a transitional period until 2024, while urging the parties to include more competitive elements, such as replacing the current standard payment with a recommendation to pay compensation for animal welfare costs and stressing the importance of transparent labelling (which informs consumers about origins of animals and their living conditions). In the third cooperation project, the FCO concluded that such surcharges, without the goal of increasing sustainability, were mere price-fixing schemes and contrary to competition law. The decisions demonstrate that coordinated schemes and initiatives must be in clear pursuit of sustainability-related objectives and must continue to promote competitive elements in pursuit of those objectives, in order to meet the FCO’s conditions for exemption. 

Collaboration on ESG – use of standard settings

When entering into sustainability agreements, businesses and trade associations should consider the following key points so as to minimise harm and competition law risk:

• Focus on features bringing genuine (quantitative or qualitative) efficiencies to consumers
• Guarantee that all competitors in the affected markets can participate in the standard-setting process
• Ensure the standard is voluntary and open to all, with non-discriminatory and fair access
• Exchange data only where necessary, and in an anonymised and aggregated format
• Do not use cooperation in achieving legitimate aims as a cover for a cartel
• Do not exchange or disclose commercially sensitive information that goes beyond what is necessary for setting the standard
• Do not rule out the possibility of developing alternative standards

Pilot technology

The sudden demand for sustainable innovation and technology is driving an increase in collaborative research and development (R&D) initiatives, which allow companies to combine forces and bring new products into existence that would often, without such collaboration, might not otherwise be developed.

For example, we are increasingly seeing competitors jointly investing in trials of new technology in areas such as battery development and electric vehicles.

Although this type of cooperation increases innovation, it nonetheless raises significant competition law risks. A cartel may occur where competitors or potential competitors are involved and information about suppliers, customers or pricing data is shared. Importantly, if the collaboration involves more than two entities, it requires only two of those entities to be competitors or potential competitors for the entire arrangement to trigger the cartel prohibitions.

Even where there is no risk of competitor involvement, consideration must be given to whether the collaboration will have broader anticompetitive effects on the market – such as others being excluded from access to the technology – as this may trigger the prohibitions against anticompetitive arrangements and concerted practices.

Notwithstanding, it is possible to engage in collaborative R&D without breaking the law. Careful planning of ring-fencing measures and information-exchange protocols is required to ensure that the information exchanged between the parties is limited to only what is reasonably necessary in order to achieve the purpose of the collaboration, and any information which allows for a more precise forecast of competitor conduct, or reduces market uncertainty, is kept strictly confidential.

Additionally, protection may be afforded to parties who enter into a formal joint venture. Recognising the important pro-competitive benefits and efficiencies that can be achieved by competitors coordinating certain activities, many competition law regimes provide formal exceptions or otherwise permit exemptions to the information exchange rules to permit lawful joint venture activity. However, these exceptions are complex – they vary between jurisdictions and require careful management – and legal advice should always be sought before any collaboration gets under way.

Dealing (or not dealing) with certain suppliers for ESG reasons

Often initiatives considered within industry associations, or other collaborative exercises within an industry, focus less on cost and more on identifying desirable supply chain arrangements, or benchmarking supplier qualities and standards. This practice is likely to become increasingly common as companies seek to learn from their counterparts about suppliers who can help them achieve their ESG goals, particularly in light of the substantial disruption to supply chains around the world due to the COVID-19 pandemic and subsequent geopolitical unrest.

A key competition law risk that can arise from this sort of information exchange or collaboration is one of “collective boycotts” or “buy-side cartels”, where competitors agree not to deal with certain suppliers, or to deal with them on a limited basis only. Even where such a decision is based on legitimate ESG-related concerns and is one that a company could make unilaterally without competition law risk, this becomes a material risk as soon as two or more competitors discuss it collectively.

By way of example, evidence of forced labour practices in the production of goods in the Xinjiang Uyghur Autonomous Region (XUAR) of China has gained widespread notoriety. Producing approximately 45% of the world’s supply of solar-grade polysilicon, the key ingredient for the manufacture of solar panels, the XUAR has put the renewables sector in the spotlight due to serious concerns about modern slavery, highlighting the potential risks a company transitioning to renewables may face within its supply chain.

The United States considers the modern slavery risk so great that, on 23 December 2021, President Biden signed into law the Uyghur Forced Labor Prevention Act (UFLPA), effectively prohibiting the import of goods produced in or connected to the XUAR. This is just one example of the wider regulatory shift which requires companies to increasingly manage ESG risks in their supply chain.

Although legislators may enforce what amounts to a collective boycott of suppliers that fail to meet ESG standards, competition law will prevent a collective arrangement between competing companies from doing the same on the basis that it reduces competition by restricting choice in the acquisition of goods or services, unless such arrangement is specifically authorised by a competition regulator or a separate law addressing the issue. Therefore, proponents of renewable projects requiring solar panels in countries without an equivalent to the UFLPA cannot safely agree among themselves not to deal with suppliers located in the XUAR, even if doing so would provide each of them with comfort that they would not be undercut by competing projects that choose to take the risk on the cheaper XUAR products.

This demonstrates that, in balancing the rush towards renewable energy consumption with rising due diligence obligations, companies must not forget competition law and that, despite all good intentions, any collective action in this space should be taken only with prior legal advice.

Collective procurement

Collective procurement in the ESG space is also on the rise, as companies seek to implement effective measures to address their climate change impact throughout the supply chain.

One such measure gaining popularity is the collective procurement of renewable electricity, which benefits both suppliers and acquirers. For example, in using a single Power Purchase Agreement contract to supply multiple entities, the supplier reduces contract administration costs by dealing with only one collective entity instead of multiple parties, while securing a high volume of offtake often needed to underwrite large renewable projects. In turn, acquirers gain increased certainty of project completion and subsequent electricity supply, and/or the supply of “green certificates” or similar environmental credits to assist with their net zero ambitions, both of which provide added confidence in meeting objectives such as renewable energy targets.

Notwithstanding, collective procurement may raise significant competition law risks. Although, supply-side cartels more commonly attract regulator scrutiny (as they are usually considered more damaging to consumers), companies must remember that a cartel can also arise in respect of their procurement activities (ie the buy-side).

While some limited exceptions can apply depending on the jurisdiction (eg the collective acquisition exception in Australia), it is important that companies structure collective arrangements appropriately to avoid any breach.

In jurisdictions offering an authorisation mechanism, such as Australia and New Zealand, collective procurement initiatives are commonly authorised on the basis that, despite being a technical breach of the cartel rules, they bring material public benefits. However, as most other regimes do not have an authorisation mechanism, legal advice should be sought.

GREENWASHING IN THE RISING TREND OF “GREEN” CLAIMS

A company’s response to ESG issues has become critical to business reputation and success. As ESG commitments become ever more important to consumers and investors, it is expected that everyone, including corporates, play their part. Thus, a positive relationship between a company’s response to ESG factors and its reputation has emerged, with the strength of response reflected in the degree to which people admire, trust and respect a company.

This has not gone unnoticed in the corporate world, with companies increasingly making public climate pledges, committing to a net zero strategy, or using ESG as a central part of their advertising campaigns. As the Australian regulator notes, “in the world of marketing, green is the new black”, and companies are doing everything they can to publicise their good efforts.

However, rising concern that efforts may not always be as “good” as a company makes out has caught the eye of regulators and consumers alike, with the ubiquity of green claims creating increased public scepticism as to the sincerity of the private sector.

Indeed, the tendency to cloud the distinction between genuine green credentials and opportunism is sufficiently notorious to attract its own term – “greenwashing” – which refers to the promotion of a company’s practices, products or services as more sustainable or environmentally beneficial than they actually are.

Greenwashing may be intentional, for example to attract investors, or accidental, where a product does not perform as well as a company expected or promised. However, regardless of the cause, it is damaging as it can mislead consumers, breach investors’ trust, and distort competition.

While there is no legislation specifically addressing greenwashing, those involved in unsubstantiated ESG claims may contravene general consumer laws which prohibit misleading and deceptive conduct⁵, along with false and misleading representations about goods or services⁶. Additionally, action may be brought under the relevant financial and corporate laws where the conduct or representations relate to financial products or services and/or are connected to corporate disclosure obligations⁷.

To avoid this, companies should:

• Ensure claims made about a product can be substantiated;

• Avoid broad or unqualified claims and representations;
• Ensure claims are specific; and
•  Ensure claims are made in plain language.

Notably, greenwashing can land a company in significant legal trouble, with 2021 seeing a rise in competition regulators instituting proceedings against companies in a crackdown on “green claims”.⁸

Claims can also attract private action: in August 2021, the Australasian Centre for Corporate Responsibility sued Australian oil and gas company Santos Ltd over statements made in its 2020 Annual Report.⁹

The case is the world’s first to challenge the veracity of a company’s net zero emissions target, the viability of carbon capture and storage, and the environmental impacts of blue hydrogen. It currently remains before the courts and serves as a reminder of the attention attracted by green claims.

ESG CONSIDERATIONS IN M&A

Merger control policy aims to ensure structural changes to the marketplace do not lead to anticompetitive outcomes. Pressure to transition to sustainable and resilient infrastructure is forcing unprecedented uptake of renewables, clean energy solutions and other new technologies, as stakeholders pivot away from carbon-intensive assets or seek to buy into businesses that can help offset their carbon emissions. ESG considerations are also now a central consideration for investors, who are increasingly analysing capital allocation through ESG filters and are often willing to invest only in assets that meet global sustainability criteria.¹⁰

This transition has led to substantial volumes of environmental considerations in M&A, along with increased numbers of merger filings, both of which have sparked the interest of regulators. Early signs show that regulators are increasingly interested in ESG considerations in their competition analyses, including for merger control.

While there is yet no settled guidance on how regulators will incorporate ESG factors into merger control policy going forward, recent developments indicate we can expect to see some or all of the following themes emerging: greater deal scrutiny for transactions with perceived negative ESG impacts, including because these are more likely to spark complaints from other market participants (even if not strictly on competition law grounds);

new market definitions, such as further segmentation of markets based on ESG factors;

potential state intervention in merger control on ESG grounds; and

perhaps further in the future, in some jurisdictions, environmental damage being considered a theory of harm.

All of these points are likely to result in more complex or longer merger reviews as competition regulators seek to “catch up” with the private sector in understanding how emerging markets (for example, those to do with trading carbon, production of hydrogen or marketing of electric vehicles and related technology) operate, and how they should be assessed from a competition law perspective. History shows that sophisticated competition regulators will readily get across the details of the markets, but deal participants should be well prepared and ready for some education as part of their merger notifications, particularly in less-advanced competition regimes.

Further, competition regulators who observe companies making a series of investments in carbon-related industries may be more inclined to scrutinise those deals more loosely due to concerns about “creeping acquisitions”, even if on their face none of the transactions appears likely to harm competition. Regulators who have internal disquiet about whether their own complacency permitted large tech companies to grow relatively unchecked by competition law regulation some years ago will not want to see the same thing happen with first movers in the climate change sector.

Although it is unlikely that ESG factors will change or replace traditional merger control criteria in the absence of specific legislation or regulation, we expect them to play an increasing role in regulators’ decisions, at least in jurisdictions in which assessment of public benefits is expressly or implicitly part of the merger control regime.

In the light of this, merging companies should consider ESG factors – like a deal’s impact on the environment and jobs – when seeking merger clearance, and ensure that any internal documents addressing these issues are consistent with pro- competitive goals and meeting sustainability objectives.

EXCLUSIVITY OBLIGATIONS

Exclusive dealing is another form of anticompetitive conduct arising in the drive to meet climate change targets. Broadly, an exclusive dealing arrangement involves the supply, or acquisition, of goods or services on the condition that the other party does not acquire, or supply, goods or services from, or to, a competitor or class of competitors.

In most jurisdictions, including Australia, Europe and the US, such an arrangement will be illegal where it has the anticompetitive impact of substantially lessening competition.¹¹ Regardless, conditional supply and acquisition arrangements are often pro-competitive and, in an ESG scenario, potentially critical to furthering sustainability initiatives.

The push towards the production of green hydrogen provides a stark example for the infrastructure sector, which, in order to become carbon neutral, must transition to clean fuel to power both its own assets and operations, and those of others in its supply chains. 

Consider: Company A seeks to build a hydrogen plant to further its ESG initiatives; however, building the plant is extremely costly – financial analysis has determined that Company A needs to secure a minimum of 60% of continuous offtake for ten years for the project to be financially viable. Thus, to proceed, Company A needs certainty that it will have a long-term purchaser of the hydrogen fuel to, in effect, underwrite the project. To achieve this, Company A enters into a long-term offtake agreement with the buyer, Company B, under which Company A agrees to sell green hydrogen to Company B on the condition that Company B purchase a minimum of 60% of the green hydrogen fuel produced by the hydrogen plant for a term of ten years.

From an ESG perspective, the agreement appears a highly effective means of innovation in, and production of, clean fuel. However, from a competition perspective, the agreement may constitute an illegal exclusive dealing if considered anticompetitive.

Whether it would result in the substantial lessening of competition required to be deemed anticompetitive requires an in-depth legal analysis beyond the scope of this article and will ultimately depend on the particular circumstances of the case; however, the example illustrates the difficulty competition law may cause for investment in new and costly technologies, which are yet to achieve the economies of scale required to make their uptake cost-competitive.

COMPETITION BETWEEN STATES

Finally, an emerging point for all infrastructure (and other) businesses to consider is the impact that governments’ climate change and net zero policies are likely to have on competitive dynamics within private sector industries that operate in multiple jurisdictions around the world. For example, a country that legislates stricter environmental policies in order to meet its net zero ambitions and timeline will likely be imposing additional costs on companies operating within its jurisdiction that need to comply with those standards. Companies who operate in other jurisdictions without equivalent standards will have lower operating costs to operate and, absent any other intervention, will be able to offer cheaper products and undercut their competitors in the first country. This may in turn create further pressures to collaborate and give rise to the other risks discussed in this article.

Some jurisdictions that are leading the drive for net zero policies are considering, in parallel with these policies, mitigation measures to address the impact on cross-border trade. For example, the Cross Border Adjustment Mechanism (CBAM), which is being introduced in the EU, is designed to ensure that EU importers of goods pay a price for their carbon emissions that is comparable to the price paid by EU domestic producers under the EU Emissions Trading System (EU ETS).

CONCLUSION

The race to net zero is on and the transition to a sustainable and resilient infrastructure sector is key. Commercial imperatives abound as global calls for climate action continue to grow in volume and intensity.

Despite inherent risks and limitations, the sector should recognise that it has an exciting opportunity to use contractual provisions to both reduce its carbon footprint and strengthen its wider ESG performance. Effective advertising and reporting of such efforts can also lead to enhanced reputation and financial results.

However, among all the excitement on entering this new world of ESG risk and opportunity, companies must remember that competition and consumer law compliance cannot fall behind in the race to net zero.

<sub>1.  Global Infrastructure Hub, “Advancing the circular economy through infrastructure: Transition pathways for practitioners in circular infrastructure”, 17 November 2021 <Advancing the circular economy through infrastructure (gihub.org)> at p 8.
2.  The Climate Action Tracker and Net ZERO Tracker websites keep track of worldwide progress towards climate goals, including commitments pledged and progress of each country.
3.  See recent press releases published by the German Federal Cartel Office (FCO) on 18 January 2022 and 25 January 2022, which demonstrate the regulator’s willingness to review and assess sustainability initiatives and their compatibility with competition rules, and to provide guidance on the conditions under which sustainability goals in cooperation agreements between competitors may be sufficient to exempt such agreements from the prohibition on anti-competitive agreements in Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) and equivalent German provisions.
4.  FCO press release “Achieving sustainability in a competitive environment – Bundeskartellamt concludes examination of sector initiatives” 18 January 2022 https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2022/18_01_2022_Nachhaltigkeit.html?nn=3599398; FCO press release “Surcharges without improved sustainability in the milk sector: Bundeskartellamt points out limits of competition law” 25 January 2022 <https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2022/25_01_2022_Agrardialog.html?nn=3599398>.
5.  For example, in Australia, action for misleading and deceptive conduct may be brought under the Competition and Consumer Act 2010 (Cth) (CCA) Sch 2, s 18.
6.   CCA Sch 2, s 29.
7.  The ASIC Act 2001 (Cth) (Asic Act) and Corporations Act 2001 (Cth) (Corporations Act) contain similar prohibitions in respect of financial products or services. See ASIC Act s 12DA and Corporations Act s 1041H for prohibitions on misleading and deceptive conduct, and ASIC Act s 12DB and Corporations Act s 1041(E) on false or misleading representations.
8.  For example, in recent years, the ACCC has commenced a number of proceedings concerning environmental claims relating to consumer products. These include: ACCC v Volkswagen (misleading claims regarding diesel emissions resulting in
a $125 million fine); ACCC v Woolworths (alleged misleading claims regarding biodegradable and compostable picnic products); ACCC v Kimberly-Clark (alleged misleading claims regarding “flushable” wipes).
9. Santos, 2020 Annual Report, published on 18 February 2021 <https://www.santos. com/wp-content/uploads/2021/02/2020-Annual-Report.pdf>.
10. Research conducted by Ashurst shows that stakeholders consider net zero and climate change among the top three challenges affecting the infrastructure sector.
See: “Resilient Infrastructure: Rising to the challenge of a more sustainable future” <http://globalintranet.firm.ashursts.biz/divisions/Projects-and-Real Estate/Documents/Ashurst%20Resilient%20Infrastructure%20Report%20-%207%20 December%202021.pdf> at p 8.
11. For example, in Australia exclusive dealing will not constitute a contravention of the law unless it has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market. See section 47(10) of the Competition and Consumer Act 2010 (Cth).</sub>