Plastic bags – a case study in competition law barriers to collaboration
The issue of a voluntary agreement plastics bags with substantial coordination and also impact was investigated in the ‘Partial Impact Assessment of powers to require charges for single-use carrier bags‘ (Defra, May 2008 – pg 103-4). This concluded:
“…the Government has been unable to orchestrate a sufficient response to public demand for a huge reduction in carrier bag usage. Government intervention is needed because retailers are unlikely to be able to achieve this themselves without resorting to charging for bags – and their ability to do this collectively is impeded by Competition Law.”
“…To be statutorily exempt, an agreement would need to fulfil four cumulative criteria. These criteria rely very heavily on economic considerations, and include both the need to prove that the agreement is necessary to achieve its stated ends, and that consumers would receive a fair share of the resulting benefit. Designing a voluntary agreement which meets these criteria may be possible, but will require a great deal of detailed work, including external legal advice, to minimise the risk of successful challenge.
“Another potential route for exemption is that the Competition Act provides for the Secretary of State from BERR to make an exclusion from the Act’s prohibition of anti-competitive arrangements. Such exclusions can only be made where there are “exceptional and compelling reasons of public policy”. It is worth noting that only two such exclusions have been provided to date (both for defence-related matters) and any UK exclusion order would not disapply the prohibition under the EC Treaty of any agreement that might have an effect on inter-state trade.”