Comments by the Business at OECD (BIAC) Competition Committee to the OECD Global Forum on Competition

In fact, the intellectual case in favor of including out of market environmental efficiencies into the competitive assessment is strong and those same considerations apply to efficiencies that provide out of market consumers with other, non-environmental benefits in the form of lower prices, quality enhancements or more innovation.3 At base, the rationale for including out of market efficiencies i. [...] Against this background BIAC respectfully suggests that it would make eminent sense, in addition to addressing the debate of the treatment of out of market efficiencies, or, even more narrow, to the treatment of out of market environmental efficiencies, to also revisit the treatment of efficiencies more generally. [...] Another important general observation is that in jurisdictions that exclude out of market efficiencies, the definition of the relevant market may determine the scope of efficiencies that can be considered.11 Indeed, if efficiencies must relate to the affected market, efficiencies materializing outside the boundaries of that market cannot be considered. [...] The European Commission’s policy leaves little room for the appreciation of out of market efficiencies but leaves some room for out of market efficiencies provided that the group of consumers affected by the restriction and benefitting from the efficiency gains are substantially the same. [...] The EC’s 2023 Horizontal Guidelines provide that: “[a]lthough the weighing of the positive and negative effects of the restrictive agreements is normally done within the relevant market to which the agreement relates, where two markets are related, efficiencies generated on separate markets can be taken into account, provided that the group of consumers that is affected by the restriction and that.