In recent years, national competition authorities have been championing a more progressive approach to assessing sustainability agreements, while the European Commission has played catch-up. However, the Commission is now doubling down on its efforts. Attempts by the Dutch ACM and other national competition authorities to facilitate sustainability agreements has prompted the Commission to return to the drawing board for a harmonised pan-European approach. It has not only devoted an entire chapter to the competitive assessment of sustainability agreements in its revised Horizontal Guidelines, but has also begun to follow up on its commitment to provide informal guidance following the revision of its Informal Guidance Notice almost 20 years after it was first issued.

At the same time, the Commission does not hesitate to pursue sustainability-focused antitrust enforcement where needed. And with Teresa Ribera, who commands a formidable track record in sustainability, settling in as the first Commission Executive Vice-President for a Clean, Just and Competitive Transition, it is fair to say that sustainability is slowly but surely becoming central to the EU's competition agenda.

Another case in point is the proactive consideration of sustainability efficiencies in the ongoing revision of the Horizontal and Non-Horizontal Merger Guidelines, where the Commission has further opportunity to align EU competition policy with the Clean Industrial Deal. The Commission has even accepted a commitment to grant access to sustainability patents, interestingly, to offset the adverse effects of foreign subsidies in its second in-depth merger review under the Foreign Subsidies Regulation.

Antitrust risk context

Although companies aspire to higher ESG standards and value sustainability, actual efforts may, of course, make less sustainable but cheaper competitors more attractive to customers. To avoid this "first mover disadvantage" and the associated inertia, companies may opt to join forces in pursuing new, and often costly, greener business practices. They must, however, be cautious, as any collaboration between competitors – whether limited to creating common databases or extending to joint purchasing arrangements and standardisation – may infringe competition rules. Yet, two recent informal guidance letters on joint purchasing arrangements and another formal opinion in the agriculture sector demonstrate that the Commission is balancing targeted sustainability-related antitrust enforcement with an open-door policy to support genuine pro-sustainability collaboration.

EU formal guidelines and informal guidance

In a previous article, we discussed the Commission's Horizontal Guidelines, including the sustainability chapter, which explains how competitors can collaborate to achieve sustainability objectives while staying within the law. Using the guidelines as a reference point, parties to proposed sustainability collaborations are responsible for assessing compliance with the rules. However, being conscious, among other things, of the difficulty in navigating unexplored questions about the interplay between sustainability and competition law, the Commission published the revised Informal Guidance Notice. The Commission has included more flexible criteria for companies to request the Commission's help in assessing whether their collaboration plans are compatible with EU competition rules where novel or unresolved questions are involved. Such an open-door policy aims to increase legal certainty in how the rules are applied. Where the Commission considers it appropriate and subject to its enforcement priorities, it may provide informal opinions in the form of informal guidance letters. These letters reflect the Commission's observations on the facts presented to help businesses conduct an informed self-assessment.

First informal guidance letters

For almost three years since the publication of the revised Informal Guidance Notice, companies seemed to have submitted no plans for sustainability collaboration to the Commission for review. But in 2025, in two cases, the Commission finally got the opportunity to issue its first informal guidance letters based on the revised tool. In addition, the Commission also issued its first formal opinion under the special competition law framework for the agricultural sector.

Agreement to reduce CO2 emissions in European ports

The Commission has endorsed plans by port operators to jointly purchase electric equipment to enable the sustainability transition in EU ports. Port terminal operators, such as APM Terminals, part of the Maersk Group, aimed to jointly purchase and also jointly set minimum technical specifications for battery-electric straddle and shuttle carriers. These carriers are types of container-handling equipment used in European ports, where diesel-powered variants are currently prevalent. The shift to electric carriers faces challenges due to higher costs and a lack of interoperability between charging equipment from various suppliers. At APM's request, the Commission issued its informal opinion on the compatibility of this agreement with the prohibition on anticompetitive agreements.

The proposed sustainability agreement seeks to lower costs for port operators by joint purchasing and setting minimum technical specifications. These measures allow port operators to pool future demand, provide suppliers with greater demand predictability and enhance interoperability – expediting the transition from diesel to electric equipment and thus reducing CO2 emissions in European ports. The Commission concluded that the agreement did not raise competition concerns, provided there are safeguards such as preserving independent purchasing options for port operators, capping the volume of demand to be pooled under the agreement, and restricting the exchange of competitively sensitive information to what is strictly necessary.

Joint SEP negotiation in the European automotive sector

The Commission has also issued a positive informal opinion on joint negotiations for standard-essential patent (SEP) licences in the automotive sector. German companies BMW, Mercedes, thyssenkrupp and Volkswagen are planning to create the Automotive Licensing Negotiation Group to collectively negotiate licences for the use of technologies covered by SEPs. These patents are required for implementing standards like 4G, 5G and WiFi in products and are essential for technology interoperability. The negotiation group aims to increase the efficiency of SEP-licensing negotiations, particularly for digital technologies that are necessary to promote innovation in the automotive sector. The resulting innovation can drive energy efficiency, advance sustainable mobility and promote connectivity and traction technologies. By promoting digitalisation, the negotiation group is expected to contribute to the EU's goals for decarbonisation and the transition to net-zero emissions by 2050, as set out in the Clean Industrial Deal.

The Commission explains that while the negotiation group shares characteristics with joint purchasing arrangements, it is still a novel form of collaboration aimed at licensing intellectual property rights, not at purchasing goods and services. The SEPs to be jointly negotiated by the group are also not exclusive to the automotive sector as the technologies covered by these patents are used across multiple industries and for various purposes. As a result, it is unlikely that the combined market share of the group members in the purchasing market(s) exceeds 15% of the total demand for the relevant SEPs, indicating limited buyer power. The group is open to other interested companies in the automotive sector, both car manufacturers and component suppliers. Negotiations with the group are voluntary for SEP holders, and information exchange is limited to what is necessary for joint licence negotiations. Based on this, the Commission considered anticompetitive effects unlikely.

Joint purchasing, buyer cartels and sustainability

Joint purchasing arrangements, including those limited to joint negotiations, are common practice, as companies often prefer to pool their purchasing activities to collectively command greater buying power or, at times, address supply chain disruptions. A joint purchasing arrangement can also cover an agreement among purchasers to stop buying products from certain suppliers (a sort of collective boycott), for example, because those products are unsustainable and they want to purchase only sustainable products. Genuine joint purchasing arrangements, however, must be distinguished from buyer cartels.

Buyer cartels do not entail joint purchasing or joint negotiations with the supplier. In other words, a buyer cartel consists of individual negotiations with the supplier while cartel members secretly coordinate those negotiations. Earlier this year, the Commission fined car manufacturers and their industry association around EUR 458 million for anticompetitive conduct related to the recycling of end-of-life vehicles (ELVs), including for implementing a buyer cartel. The Commission found car manufacturers agreeing not to pay car dismantlers for processing ELVs, sharing commercially sensitive information on their individual agreements with car dismantlers and coordinating their behaviour, to be anticompetitive. The Commission also found it equally problematic that car manufacturers agreed not to promote recycling information to suppress consumer awareness, thereby reducing the potential competitive pressure on one another to go beyond legal requirements.

First Commission opinion in agricultural sector

EU competition law applies to the production of and trade in agricultural products only to the extent determined by specific legislation. The EU has adopted a derogation from the prohibition on anticompetitive agreements for sustainability initiatives relating to agricultural products (Article 210a of the CMO Regulation). This derogation covers producers and participants along the entire value chain (processors, wholesalers, distributors, etc). However, one of the parties to the agreement must be a producer of agricultural products. The derogation allows agreements that lead to higher prices or lower quantities, provided they are indispensable to achieving sustainability standards higher than those mandated by EU or national law. Producers of agricultural products may request the Commission's opinion on whether their initiative is compatible with the derogation. Compared to informal guidance under the normal competition rules, an opinion pursuant to the CMO Regulation is a more formalised procedure. The Commission must issue its opinion within four months.

Agreement by sustainable wine producers to set prices

The Commission issued its first opinion under the CMO Regulation on an agreement in the French wine sector between producers of organic and Haute Valeur Environnementale (HVE) wine and their buyers to set indicative prices to guide bulk wine sales in France's Occitanie region. These producers face difficulties due to oversupply in the wine sector, changing consumer preferences, increased consumer price sensitivity linked to inflation, and the fact that consumers are largely unaware of the cost of sustainable production. In general, producers of organic and HVE wines are experiencing lower profitability than conventional producers, which might lead them to abandon sustainable production or even possibly exit the wine production market. Against this background, the proposed agreement seeks to incentivise producers to continue sustainable production by establishing indicative prices that cover production costs under the relevant standards (organic or HVE), plus a profit margin of up to 20% of those costs. During this two-year arrangement, indicative prices will be set annually for each standard and for six grape varieties. The Commission found the proposal compliant with the CMO Regulation and issued a positive opinion.

Member state efforts

Publishing guidelines and encouraging outreach to regulators have already proved fruitful at the EU member state level. Some states, including Austria, Portugal, France and lately, Belgium, have provided orientation frameworks for assessing if sustainability proposals comply with competition law, and they are also willing to provide individualised guidance. Others, such as Germany and Greece, provide case-by-case guidance based on existing rules or through innovative "sustainability sandbox" solutions.

Most recently, the French Competition Authority informally cleared the creation of a platform to collect and share data on suppliers' carbon footprints in the French retail sector. In the UK, the Competition and Markets Authority issued positive guidance in the building materials and services sector, in accordance with its Green Agreements Guidance. The proposal recommended selecting a single industry-wide provider of supply chain assurance services to administer a standardised ESG platform, which will make it easier to assess the impact of supply chains and improve processes and policies.

Dutch Policy Rule

The Dutch ACM has gone furthest by committing to refrain from enforcement action against certain sustainability agreements that comply with its policy rule, even though they may be incompatible with applicable EU rules set out by the Commission in its Horizontal Guidelines. In a previous article, we analysed the ACM's nonconformist policy rule, as well as the first agreements it informally assessed and approved in 2024, including on commercial waste recycling, an e-commerce sustainability standard, coffee capsule recycling, banks' ESG reporting, and temperature reduction in asphalt production. The ACM's informal approvals in 2025 concerned multistakeholder sector-wide sustainability initiatives in the natural stone, textile, and metals sectors, all aimed at conducting business more responsibly and sustainably across the relevant production and supply chains. The ACM has even encouraged the Belgian competition authority to adopt a similar nonconformist approach.

Divergent approaches across the pond

While EU authorities seek to enable sustainability collaboration by providing frameworks and individual guidance for antitrust compliance, some regulators across the Atlantic appear to have a different view.

The Brazilian Soy Moratorium

In August 2025, Brazil’s Administrative Council for Economic Defence (CADE) launched a cartel probe into a sustainability agreement designed to prevent soybean traders from sourcing products from deforested Amazon territories. Several Brazilian soybean traders and exporters had agreed not to purchase soy from areas of the Amazon deforested after 2008, an agreement known as the Soy Moratorium. To enforce this, the companies had to exchange data on the prices, volume, and origins of the soy they sold. This enabled parties to establish soy purchasing conditions and issue joint ultimatums to suppliers regarding terms of purchase. However, CADE had concerns that the Soy Moratorium has evolved into a buyer cartel and has now imposed interim measures suspending the moratorium pending its investigation. Notably, CADE chose to investigate the moratorium despite certain government agencies and ministries being its signatories.

US FTC investigation into truck manufacturers' emissions partnership

In August 2025, the U.S. Federal Trade Commission (FTC) concluded its probe into potential antitrust violations by truck and engine manufacturers and their trade association, which participated in the Clean Truck Partnership with California's Air Resources Board (CARB). Daimler Truck, International Motors, PACCAR and Volvo Group agreed to comply with a series of CARB regulations limiting truck sales and greenhouse gas emissions. The arrangement compelled the manufacturers to transition to zero-emission technology and abandon internal combustion engines. Participants could monitor and hold each other accountable for compliance with the CARB regulations. But in response to the FTC investigation, truck manufacturers had to dismantle the Partnership, commit to independent competition and agree to avoid similar regulatory collaborations in the future.

Federal intervention in climate-collusion lawsuit against asset managers

In May 2025, the FTC and the U.S. Department of Justice filed a statement of interest supporting a lawsuit initiated by several states, led by Texas, against three of the largest institutional investors in the world: BlackRock, Vanguard and State Street. According to the claim, the asset managers had violated antitrust law by coordinating with each other to achieve net-zero emissions and reduce coal output by joining climate alliances such as the Net Zero Asset Managers Initiative and Climate Action 100+. They allegedly used their shareholdings in competing coal companies to influence management and share competitively sensitive information.

Broader anti-ESG sentiment

The US House Judiciary Committee has also been busy investigating dozens of asset management firms for their involvement in various climate-focused initiatives. This pressure has led to widespread withdrawals from these groups. The sector-specific Net-Zero Banking Alliance went one step further and terminated its membership-based activities following multiple high-profile departures.

What next?

The Commission's first guidance letters under the revised Informal Guidance Notice exemplify the practicality of the tool, although it is too early to know if this marks the start of a regular practice or is merely a false start. Nevertheless, even if a proposed sustainability agreement receives informal endorsement from the Commission, parties must still closely evaluate risks under other antitrust regimes with less accommodating approaches to sustainability. It is especially prudent to assess the transatlantic impact of initiatives carefully and, if necessary, tailor their geographical scope. Recent examples from the US and Brazil are disheartening, highlighting that what could be a compliant sustainability agreement in the EU might quickly be characterised as a ''climate cartel'' in those jurisdictions, with regulators dismissing environmental objectives in their antitrust analysis.