von Leon Röser
An increasing number of competition authorities are investigating sustainability agreements between businesses. While the EU Commission has been open to these kind of agreements in recent years, questions arise as to whether this trend will continue and whether the private sector’s sustainability ambitions will remain privileged. Another concern is whether these investigations will negatively impact European businesses.
Slowing down climate change was commonly seen as the most important task for this generation’s societies and political leaders. Therefore, finding a more sustainable way into the future was not only considered a political mission but also a responsibility of private actors, especially companies.
Nevertheless, taking action to make a business more climate-friendly involves a high level of investment. To mitigate these costs and risks, and avoid going out of business in an attempt to be climate-friendly, such companies could collaborate to combine various competencies and share costs. These joint measures will be referred to as sustainability agreements.
However, these climate ambitions are increasingly challenged by conservative forces and governments who question those profoundly. Since these governments no longer believe in the necessity of ambitious sustainability goals, partially deeming them illegitimate, sustainability agreements between companies on joint measures lose their positive aspect and could be seen as anti-competitive behavior.
Now, competition authorities already started to raise an eye on sustainability agreements. This article will examine whether these investigations could mark the beginning of a trend reversal and influence the European stance on sustainability agreements, which would have significant implications for European businesses.
The European Perspective (so far)
By implementing the European Green Deal, the EU put the fight against climate change high up on their agenda. Fair competition will no longer be viewed in isolation in the future: The green transition will play an additional role. Therefore, the EU is trying to find a way forward by balancing these socio-environmental ambitions and existing antitrust regulations (here). This approach leads to a dilemma: Green ambitions by the private sector are in the public interest but can only succeed through cooperation.
In order to open a possibility for these ambitions, the European Commission has taken sustainability agreements into account when updating the Guidelines on horizontal cooperation agreements. However, as these Guidelines are only non-binding soft law, the contradiction with binding primary law remains and such agreements could still be seen as cartels under Art. 101 (1) TFEU. But, in accordance with paragraph 521 of the Guidelines, such agreements will only be seen as antitrust infringements if they entail restrictions of competition by object or they lead to appreciable actual or likely negative effects on competition. “Restrictions by object” are restrictions that are considered to have such a high potential for negatively impacting competition that it is deemed unnecessary to demonstrate their actual effects.
However, the Horizontal Guidelines build a so-called “soft safe harbour” for these cooperations if certain conditions are met (paragraph 549), which means that the first assumption for the assessment of sustainability agreements is that they are unlikely to produce appreciable negative effects on competition. Conversely, it can therefore be argued that sustainability agreements under these conditions do not constitute a restriction by object and will not be seen as antitrust infringements.
The Commission encourages companies to use the option for informal guidance. In practice, they already approved sustainability agreements. For instance, in cases of electric equipment for the energy supply in EU ports, as well as in the automotive sector (here).
The German Federal Cartel Office (FCO) has not yet published own guidelines or policy statements on sustainability agreements and by that seems more passive on blessing these agreements off all too fast. Nevertheless, the FCO has already dealt with a couple of sustainability agreements in a positive manner (here). In its final report for 2023-2024, the FCO comments on these collaborations and does not seem per se opposed to approving them.
Providing an in-depth legal analysis of sustainability agreements under EU and German law would be beyond the scope of this article. However, it is evident that sustainability agreements are on the agenda. We can see that the European Commission in particular wants to pave the way for such agreements in order to achieve its economic transition goals. Without publishing their own guidelines, the German FCO does not appear to reject sustainability agreements per se and seems willing to sign such agreements that benefit society. A positive trend for such agreements is visible in Europe.
Current Investigations in Sustainability Agreements
Yet, some competition authorities challenge companies’ sustainability agreements, deeming them as anti-competitive. Prominent examples include the US’ Federal Trade Commission (FTC) and Brazil’s Administrative Council for Economic Defense (CADE).
The willingness and motivation to conduct such investigations appear to be fueled by growing reservation against climate transition within the political field. The current administration in the US enforces (antitrust) law without considering any additional factors. Therefore, they even revoked the waivers, which were granted to the California Air Resources Board (CARB) by the Environmental Protection Agency (EPA).
In collaboration with CARB, some of the largest truck companies established the Clean Truck Partnership, an agreement to adhere to a series of CARB regulations. The agreement’s main objective was to limit truck sales and thereby reduce greenhouse gas emissions. However, after the FTC opened an investigation, many of the truck manufacturers decided to disclaim the agreement. The FTC demanded that the companies commit to the unenforceability of the Clean Truck Partnership and promise never to enter into any restrictive agreement in the future. The FTC closed its investigation following the commitments (decision published on Aug 12th 2025; here).
Similar developments can be seen in Brazil where the competition authority started investigating the so-called Soy Moratorium agreement, which aims to discourage soybean exporters from using deforested land in the Amazon. Starting point of the probe was a complaint by the agriculture committee of Brazil’s lower house of Congress and therefore – again – a political intervention.
Possible Implications for European Businesses
While other competition authorities are changing their perspective, the European Commission seems to be staying on course in supporting (serious) sustainability agreements. The few informal guidance requests, in which the Commission approved the agreements, can create trust in this commitment. Therefore, European businesses that operate solely on the common market can continue to work with business partners to privately address the climate crisis. The option to request informal guidance can lead to clarification even before entering into such agreements.
However, businesses active in U.S. and Brazilian markets need to be very careful. Not only will the number of such investigations rise in future months, but the governments could also use the antitrust enforcement to put pressure on European businesses in an ever-rising hostile economic environment. This carefulness could also lead to a chilling effect, as companies generally avoid entering these types of agreements anymore because any type of cooperation could be interpreted as anti-competitive in those jurisdictions (here).
In fact, this could hurt Europe’s ability to reach its environmental goals and build a more eco-friendly economy. Most companies that could make a significant difference are active in the U.S. market and are therefore exposed to the aforementioned changes. Additionally, legal fragmentation will create general uncertainty for global undertakings. These two factors will either prevent companies from taking action or provide them with an excuse for inaction.
Overall, sustainability agreements are a topic that should be monitored closely by not only legal counsel in companies, but also by European scholars and legal staff of competition authorities. This area really offers an opportunity to find a European solution to the dilemma between socio-environmental and antitrust issues. For now, the investigations in the U.S. and Brazil do not affect Europe’s positive stance on sustainability agreements.
Zitiervorschlag: Röser, Leon, Sustainability Agreements Under Pressure, JuWissBlog Nr. 92/2025 v. 07.10.2025, https:/www.juwiss.de/92-2025/
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