The German regulatory authority raises cartel risks in connection with the use of industrial initiatives for the diligence of the supply chain | Jones Day

The corporate sustainability-due diligence directive of the EU (CS3D) emphasizes that industry initiatives (in addition to multi-stakeholder initiatives) can represent helpful instruments in order to enable covered companies to meet their obligations to identify, reduce and prevent adverse effects on human rights and certain environmental standards in accordance with CS3D. Guidelines (currently only available in German) recently published by the German Regulatory Authority (Federal Office for Economic Affairs and Export Control, BAFA), which is responsible for the enforcement of the German Supply Chains -Diligence Act (SDDA), however, it serves to remember that industry initiatives work together in the field of supply chain, which under the permissible antiprupt -S laws against the permissible antiprupt laws. Especially companies that work with competitors among other things According to the EU competition law (see the latest judgment of the European Court of Justice of July 29, 2024). In addition, the new German leadership is reminiscent of the ban on the ban on boycotts under German competition law.

In fact, companies that are necessary to fulfill the laws to meet the care chain should remind you that neither national care laws nor the CS3D provide for a antitrust exemption. In other words, the mere fact that companies intend to fulfill their obligations according to the supply laws of the supply chain do not provide justification according to applicable antitrust laws. In order to receive instructions, a number of competition law authorities have published or published the guidelines for compliance with the antitrust laws in connection with the diligence of the supply chain. In addition, on March 8, 2022, the German Bundeskartellbüro published a case summary about the assessment of a sustainability initiative to promote a living in the banana sector.

The publication of the instructions by BAFA is in good time. While the future German government has pointed out that the BAFA will be implemented its enforcement activities in relation to the SDDA by 2027, numerous companies voluntarily cooperate in industrial initiatives to support human rights or environmental standards today.