FCA response to CMA’s Environmental Sustainability Guidance

Following the publication of the final guidance as to agreements made between companies, including competitors, to promote sustainability in UK without violating Chapter I provisions of the Competition Act 1998 by the Competition and Markets Authority (CMA), the Financial Conduct Authority, FCA, has published a press statement in this context.
Therein, the FCA welcomes the guidance and notes that it will consider the document in its enforcement of competition law in the financial services sector, as the Authority has concurrent powers to ensure a competitive financial market environment. Furthermore, the regulator states that in view of the novelty of ESG considerations in business matters, stakeholders are encouraged to get in touch with the FCA if any uncertainties arise in this context. The FCA will then determine „whether and how [it] can either provide clarification, take other regulatory actions and/or direct enquiries to and work with the CMA“.
To recall, the guidance sets out
– key principles and criteria that apply and shall be considered for any ESG-related horizontal agreements between companies;
– an illustrative list of sustainability agreements that are deemed not to be violating the Competition Act;
– an illustrative list of sustainability agreements that are likely to violate the Competition Act;
– an illustrative list of agreements that are violating the Competition Act, but may qualify for an exemption under the Act; and
– a general exemption for climate change agreements.