There was significant progress on clarifying the antitrust assessment of sustainability agreements guidelines were published and stress tested. However, among the suite of further guidance and decisions issued, there continues to be divergence in the scope of collaborations covered and benefits that could be taken into account, as well as in the time taken for authorities to provide guidance. In addition, the U.S. remained a notable outlier. With political pressures to prioritize economic growth potentially trumping green agendas, 2025 could be a pivotal year in this area.
In the EU, the Dutch antitrust authority (ACM) has been particularly active in providing informal guidance for individual sustainability initiatives. First, it approved a Dutch e-commerce trade association’s plan to launch a new sector-wide, non-profit sustainability standard for businesses that wish to reduce their environmental impact in areas such as product selection, packaging, and delivery. Second, it allowed the Dutch certifying organization Stichting Milieukeur to introduce a sustainability fee for farmers, referencing its revised January 2024 guidelines on collaborations between farmers. Then, in the second half of 2024, the ACM permitted in principle three separate collaborations. These were between: coffee capsule producers—including joint investments in sorting machines—to improve the recycling of coffee capsules; banks to increase comparability of their ESG reports; and asphalt producers to facilitate switching to lower, more sustainable production temperatures.
Most recently in February 2025, the European Commission (EC) published a roadmap on a Clean Industrial Deal for competitiveness and decarbonisation with proposals to revise guidelines to ensure that sustainability benefits are better integrated into the competition analysis, provide informal guidance on the compatibility of co-operation projects with antitrust rules, and investigate whether European companies could actually benefit from more co-operation between industry players in the recycling of raw materials.
There has also been a number of developments in other parts of Europe. In France, hot on the heels of its publication of a “flexible” framework to submit requests for guidance on sustainability initiatives and its commitment to an “open door” policy, the French antitrust authority published its first informal guidance in July 2024. This was prompted by a request from organizations representing operators in the animal nutrition sector and provided clarity on principles for a standardized methodology for calculating a product’s environmental footprint when assessing sustainability objectives. Meanwhile, in May, the German Federal Cartel Office (FCO) found that the introduction of a shared reuse system in the plant trade sector to reduce plastic waste that involved coordination and exchange of information through a neutral third party was in principle compatible with antitrust law. The FCO noted that participation would be voluntary and open to all market participants at the different levels of the value chain, irrespective of whether they are members of the trade association introducing the reuse system. Portugal also joined the debate in May 2024, with the Portuguese antitrust authority consulting on a draft best practices guide on sustainability agreements.
In the U.K., the Competition and Markets Authority (CMA) published its second informal opinion following its 2023 “Green Agreements Guidance.” The CMA provided guidance on a proposal by supermarkets to reduce greenhouse gas emissions in their supply chains by increasing the number of suppliers setting science-based, net zero targets—a full year after informal guidance was sought.
Beyond Europe, the Korean Fair Trade Commission (KFTC) issued self-compliance guidelines that outline where antitrust law covering cartels and unfair practices, such as refusal to deal, could be relaxed for eco-friendly initiatives aimed at reducing greenhouse gas emissions, waste and pollution, or promoting recycling. While, in an indication of the evolving nature of policy in this area, the Japanese Fair Trade Commission (JFTC) revised its Green Guidelines, adding further clarity to the actions businesses are able to take without breaching Japanese antitrust laws. Right at the end of 2024, the Australian Competition and Consumer Commission (ACCC) also published its final guidance for businesses on the principles underpinning sustainability collaboration and where exemptions to antitrust law prohibitions may be appropriate. Notably, the ACCC explained that it can authorize proposed conduct where the likely public benefits—including for social issues such as antislavery and governance as well as environmental issues—outweigh any public detriment. In Singapore, at the start of 2025, we saw the first positive guidance for collaboration to pursue sustainability objectives issued under a new streamlined review process. The review was completed within 30 working days, in line with the expedited timeline, and related to the recycling of beverage containers. Finally, the South African antitrust authority issued block exemptions for certain categories of agreements or practices among small-, micro- and medium-sized enterprises which expressly could cover environmental performance and are designed in part to support the more efficient delivery of sustainability outcomes.
In contrast, the U.S. remains dogged in its resistance to any sustainability exemptions to antitrust laws. In April 2024, the then Chair of the U.S. Federal Trade Commission (FTC), Lina Khan, stressed the lack of an ESG exemption in a speech to the American Bar Association. We do not envisage a change in approach under the FTC’s new leadership. In fact, investigating and prosecuting collusion through ESG initiatives could become a top priority for the new FTC Chair, Andrew Ferguson, according to prior documents supporting his bid for the position. The potential for antitrust authorities to take real and often significantly diverging approaches to the assessment of sustainability projects means that those that span multiple jurisdictions will need to be managed carefully.
