In early May, eight administrative bodies in charge of regulating different sectors, including the French Competition Authority (“FCA”) for competition, published a joint working paper highlighting the need to take into account the urgency of climate change in exercising their respective missions.
The paper notes that the regulators’ mandates take into account climate objectives to varying degrees. The FCA’s mandate entrusts it with the mission to protect competition and defend consumer interests, with no explicit reference to climate objectives. In practice, this may not always be consistent with climate objectives. The paper notes, for instance, that environment-friendly initiatives may violate competition law if they lead companies to set up an anticompetitive agreement (e.g., rival companies agreeing to stop supplying a type of polluting product in a coordinated manner).
Conversely, the FCA explained that its decisional practice and its opinions can set up a competitive framework favoring environment-friendly practices For instance:
The FCA can sanction anti-competitive agreements that lead companies to limit competition on products’ environmental performance. For example, in 2017, the FCA fined three leading manufacturers of PVC and linoleum floor covering for agreeing not to advertise the environmental performance of their respective products.
Merger control aims to maintain consumer welfare and, according to the FCA, this notion is broad enough to include environmental aspects. However, the working paper does not provide any details as to how the FCA may take into account environmental aspects in merger control decisions. In particular, it is unclear if the FCA would balance potential anticompetitive effects, e.g. on prices, with positive environmental efficiency gains triggered by a transaction.
The FCA’s contribution to this working paper reaffirms one of its enforcement priorities. Indeed, the FCA has explicitly made sustainable development one of its priorities for action in 2020. The FCA plans to give more thoughts to how it can take into account environmental issues when carrying out its mission. It also plans to promote discussion within its international network and at the EU level, including in the context of the upcoming review of key EU regulations (i.e., the EU exemption regulations on vertical restraints, certain categories of research and development agreements, and certain categories of specialization agreements).
 See FCA decision No. 17-D-20 of October 18, 2017 regarding practices implemented in the hardwearing floor coverings sector.
 See the FCA press release of January 9, 2020, “The Autorité de la concurrence announces its priorities for 2020”.
 Commission Regulations (EU) No 330/2010 of April 20, 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices; Commission Regulation (EU) No 1217/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements; and Commission Regulation (EU) No 1218/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialization agreements.