Agreements between companies to protect the environment

Businesses that are considering collaborating with one another to protect the environment can apply for an advance certificate to seek confirmation that the conspiracy, bid-rigging and civil agreement provisions of the Competition Act will not apply to the proposed collaboration. An application for an advance certificate can only be made before the businesses enter into the agreement.

The Competition Bureau can issue a certificate and register it with the Competition Tribunal if we are satisfied that the proposed agreement:

• is for the purpose of protecting the environment; and,
• does not harm competition.

A valid and registered certificate means that the conspiracy, bid-rigging and civil agreements provisions of the Competition Act do not apply to the proposed collaboration, as long as it is carried out as described on the certificate.

Before applying

Applying for a certificate is optional and businesses are encouraged to assess their competition law risk and seek legal advice before applying. Prior to applying, businesses should consider the following:

• Certificates are only available for proposed agreements, not those that already exist.
• We have discretion on whether or not to issue a certificate, and can also specify terms and conditions we believe are appropriate.
• Applicants will have to provide any information requested about the proposed agreement. A certificate may later be found invalid if it was obtained based on incomplete or inaccurate information.
• We may seek information from third parties to inform our decision on issuing a certificate. As such, certain details of the proposed collaboration are likely to be shared with others as we review the application.
• If granted, a certificate will include:
  1. the names of the parties to the proposed agreement;
  2. a description of the proposed agreement;
  3. the validity period of the certificate; and,
  4. any terms and conditions that parties must follow.
• Certificates are registered with the Competition Tribunal and can be viewed by the public.
• In certain circumstances, a certificate that has been registered may later be challenged by us, a party to the agreement, or an affected third party. For example, we may choose to challenge a certificate if the applicants are not following the terms of the agreement or if the collaboration turns out to be harmful to competition. This could result in changes to the certificate, or in the certificate being revoked.
• Conduct that falls outside the boundaries of the certificate remains at all times subject to potential enforcement action should it violate the Competition Act.
• We will consider any requests for a certificate as soon as practicable.

How to apply

To apply for a certificate, send a request to our Information Centre that includes the following initial information:

1. A copy of the proposed agreement(s) or arrangement(s) and a complete description of the proposed collaboration.
2. A complete description of the business rationale or purpose of the proposed collaboration, including a detailed explanation of how the proposed collaboration will protect the environment.
3. A complete description of why the proposed collaboration is necessary to protect the environment, including any alternatives that have been explored and why they are not suitable.
4. A complete description of the parties to the proposed agreement and their affiliates.
5. A description of the products or services relevant to the proposed collaboration including:
   • intended uses of the product or purpose of the service;
   • regulations related to production, distribution, sale, or delivery of the product or service;
   • patents, trademarks or other applicable property rights;
   • a list of products or services that are complements or substitutes for the product or service; and
   • a list and description of any products and geographic areas where the parties or their affiliates compete or potentially compete with one another, along with corresponding market share information.

This will allow us to start our review, and we will follow up seeking more specific information of the proposed collaboration. We may request documents, data or interviews at this stage. Any information received as a part of this process may be used in our enforcement of the Competition Act, including in instances where a certificate is not issued but applicants decide to move forward with an anti-competitive collaboration.

For more information, please contact our Information Centre.

Further reading:

• Competitor Collaboration Guidelines
• Bid-rigging, price-fixing and other agreements between competitors
• Competition Act
  • Sections 124.3 to 124.7 of the Competition Act