REACH and Competition Law
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Description
This chapter summarizes the principal implications of the European Union's competition (or ‘antitrust’) laws for a company negotiating the hurdles and hazards of REACH compliance. Here, the guiding principle is that the EU competition laws-as well as the competition laws of any other relevant jurisdictions-apply with full force and effect to conduct that takes place under the auspices of REACH compliance. This can raise acute dangers for unwary companies because the type of competitor collaboration contemplated in many areas of REACH law and practice—including extended information exchange and cooperation among direct competitors—can raise serious concerns under the competition laws. Violations of these laws are punishable by fines that can reach hundreds of millions of Euros. Some jurisdictions—including various EU Member States, as well as the United States—go even further, and impose criminal sanctions (including prison terms for individuals) for such conduct, and/or create private rights of action for injured competitors or consumers. Illegal anti-competitive agreements are also automatically void. Moreover, these legal penalties are augmented by the real-world costs of being implicated in unlawful conduct, including adverse publicity, involvement in burdensome investigations (which may include ‘dawn raids’ by law enforcement personnel), and lengthy and expensive adjudicative proceedings. These costs, of course, are incurred regardless of outcome or actual guilt. EU competition law, thus, demands careful attention and strict compliance. EU competition laws are enforced by the European Commission's Directorate-General for Competition and by national competition authorities (NCAs), which exist in each Member State. Investigations and enforcement proceedings can be commenced by the Commission or an NCA. In certain circumstances, companies that report illegal conduct to the Commission (or other relevant enforcement agency) may be entitled to the protection of a ‘leniency’ programme that dramatically reduces exposure to fines and penalties in exchange for cooperation and information. This chapter proceeds in four parts. This first part provides a general introduction to the competition laws of the European Union and the principal dangers that they create in the context of work under REACH. The second part discusses the principal risks raised by participation in REACH consortia. The third and fourth parts address specific points of competition law compliance that arise during registration and authorization, respectively.
Source Publication
The European Union REACH Regulation for Chemicals: Law and Practice
Source Editors/Authors
Lucas Bergkamp
Publication Date
2013
Recommended Citation
Francis, Daniel, "REACH and Competition Law" (2013). Faculty Chapters. 627.
https://gretchen.law.nyu.edu/fac-chapt/627
