Cartel prohibition and sustainability: when may you cooperate?

Cooperating with competitors on sustainability is permitted, but not without limits. The cartel prohibition in Article 101 TFEU and Article 6 of the Dutch Competition Act applies in full. The European Commission and the Netherlands Authority for Consumers and Markets (ACM) clarified the available room in 2023. Companies that know those frameworks can go further than many assume.

The short answer

The cartel prohibition forbids agreements between undertakings that restrict competition. A sustainable objective does not make an agreement permissible of itself.
Many sustainability agreements do not restrict competition at all and fall outside the prohibition.
If an agreement does restrict competition, the exemption in Article 101(3) TFEU and Article 6(3) of the Dutch Competition Act (Mededingingswet, Mw) may apply.
The European Horizontal Cooperation Guidelines of 1 June 2023 contain a separate chapter on sustainability agreements.
Since 4 October 2023 the ACM has worked with its Policy Rule on ACM oversight of sustainability agreements. The earlier draft guidelines were never finalised.
You carry out the assessment yourself. If in doubt, you can put the agreement to the ACM.

What the cartel prohibition covers

Article 101(1) TFEU prohibits agreements between undertakings that restrict competition. It covers agreements, decisions by associations of undertakings and concerted practices. What is prohibited is conduct having as its object or effect the prevention, restriction or distortion of competition. Article 6 Mw lays down the same standard for the Netherlands.

The cartel prohibition

A prohibited agreement is void. In addition, the ACM or the Commission may impose a fine, and those harmed may claim damages.

Importantly, the prohibition leaves no room for a general balancing exercise against non-economic objectives. An agreement that fixes prices, shares markets or limits production is a hardcore restriction. That remains so where the objective is a sustainable one.

Step 1: does the agreement restrict competition at all?

Much cooperation falls outside the prohibition. The European guidelines mention the following categories, among others.

Agreements that have no effect on the parameters of competition, such as price, quantity, quality, choice or innovation.
Cooperation in setting up a database of information on sustainable suppliers, provided its use is not mandatory.
Joint awareness campaigns, without agreements on price or advertising budgets.
Agreements to lobby jointly for stricter regulation.
Jointly developing a sustainability standard, provided a number of conditions are met.

That last category matters most in practice. The guidelines describe a safe harbour for sustainability standards. In short, the following requirements apply. The procedure is transparent and open. Participation is voluntary. No commercially sensitive information is exchanged. Access to the standard is non-discriminatory. No pressure is put on parties that do not take part. And the combined market position of the participants is not too large.

Step 2: the exemption in Article 101(3) TFEU

If your agreement does restrict competition, the exemption applies where four cumulative conditions are met.

Condition	What it means
Efficiency gains	The agreement produces demonstrable benefits, including sustainability benefits.
Indispensability	The restriction is indispensable to achieving those benefits; no less restrictive alternative exists.
Fair share	Users receive a fair share of the benefits.
Residual competition	Sufficient competition remains on the relevant market.

The third condition is usually the stumbling block. The guidelines distinguish three kinds of benefit: individual use value benefits, individual non-use value benefits and collective benefits. Collective benefits count subject to one condition. The users on the relevant market must substantially overlap with the group that benefits from the wider advantage.

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Sustainability initiatives and the cartel prohibition

In practice this means you must be able to substantiate the benefit. Quantify it where you can. Keep the supporting material. In an investigation, that file is your most important defence.

The role of the ACM

The ACM published draft guidelines on sustainability agreements in 2020 and 2021. Those guidelines never appeared as a final document. After the European Commission adopted its revised Horizontal Cooperation Guidelines on 1 June 2023, the ACM opted for a different form.

On 4 October 2023 the ACM published its Policy Rule on ACM oversight of sustainability agreements. The policy rule follows the European approach and adds two situations in which the ACM will in principle not investigate further.

Situation 1: agreements on compliance with binding standards. Where an agreement concerns solely compliance with sufficiently precise obligations or prohibitions, the ACM will in principle not investigate it further. The rules concerned must derive from treaties, national rules or Union rules. The condition is that those rules are not already being fully implemented or enforced.

Sustainability Agreements guideline

Situation 2: environmental damage agreements. The ACM refrains from further investigation of certain environmental damage agreements. These must be agreements that contribute efficiently to international or national environmental standards or to specific policy objectives. Four requirements apply. The agreement is necessary. The environmental benefits clearly outweigh the disadvantages for competition. The users on the relevant market receive an appreciable and objective share of the benefits. And residual competition remains.

The policy rule also contains an undertaking on fines. If you submit an agreement and receive a positive informal assessment, the ACM will in principle not impose a fine. The conditions are that you acted in good faith, that no express reservation was made and that you adjust the agreement promptly if required.

Companies may submit their agreement to the ACM informally. The ACM responds within a limited period. An informal opinion is not a decision, but in practice it offers considerable certainty.

The legislation that will not come

The Bill on Room for Sustainability Initiatives (Wetsvoorstel Ruimte voor duurzaamheidsinitiatieven) would have provided a basis for declaring sustainability initiatives binding by order in council (algemene maatregel van bestuur). That bill has not proceeded. The minister informed the House of Representatives (Tweede Kamer) of its withdrawal on 13 March 2025.

Bill on room for sustainability initiatives

The practical consequence is that you must work with the European framework and the ACM policy rule. That framework in fact offers more room than the withdrawn bill would have offered in most cases.

What you can do in concrete terms

Describe the agreement precisely: who, what, which parameters are affected and for how long.
First test whether the agreement restricts competition at all. Often it does not.
Avoid hardcore elements. Never agree on prices, market sharing or limits on production.
Keep participation voluntary and the standard accessible to third parties.
Arrange any exchange of information so that no commercially sensitive data circulate, for example through an independent third party.
Substantiate and document the sustainability benefits.
If in doubt, put the agreement to the ACM.

See also our pages on corporate social responsibility and on greenwashing and environmental claims, because a joint standard often leads to a joint label.

Frequently asked questions

May we agree with competitors to phase out a polluting product? That may amount to a restriction of competition, because it affects the choice available to customers. Assess the agreement under Article 101(3) TFEU, or put it to the ACM.

Is a sector-wide agreement safer than a bilateral one? Not necessarily. A decision by an association of undertakings also falls within the cartel prohibition. The safe harbour for sustainability standards does, however, offer a foothold precisely for sector-wide agreements.

Do you risk a fine if you submit the agreement in advance? Where the informal assessment is positive, the ACM will in principle not impose a fine. The conditions are that you acted in good faith and that you adjust the agreement promptly if required.

Contact

Are you considering a sustainability initiative with other market participants? Contact Law & More in Eindhoven or Amsterdam. We test your agreement against competition law and guide you through a submission to the ACM, in Dutch and in English.

Sustainability Law

Contacts

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Cartel prohibition and sustainability: when may you cooperate?