What's the right side of the line for green collaboration? Ask the antitrust agencies

European antitrust agencies have recently given the green light to two sustainability-related collaborations amongst competitors. Coming hot on the heels of the UK antitrust agency’s (or CMA's) guidance to WWF-UK on its jointly agreed sustainability targets for competing UK supermarkets in March 2024 (see here), which followed the CMA's guidance on the Fairtrade Shared Impact Initiative at the end of last year (see here), these decisions highlight both a continuing appetite for such collaborations and a clear willingness by antitrust agencies to continue providing fact-specific guidance and comfort to allow them to take place in a compliant and low risk way.

Public versions of the green light decisions provide further guidance to companies looking to ensure their collaborations have low antitrust risk, including the importance of carefully scoped information exchange and open-access membership.

The Netherlands: collaboration between coffee capsule recyclers

The Dutch antitrust agency (the ACM) has recently examined plans by the Royal Dutch association for coffee and tea companies to collaborate with coffee producers to recycle coffee capsules. The initiative aims to increase the recycling percentages of aluminium and plastic coffee capsules – in particular by agreeing with waste-processors to increase investments in sorting machines that make separating recyclable coffee capsules easier.

Following an informal assessment of the initiative, the ACM found no current risk of an appreciable restriction on competition.  In particular, the ACM found:

• No exchange of competitively sensitive information, as the collaboration will use an external provider to calculate member fees and provide invoicing services.
• No risk of potential exclusion of competing producers of coffee capsules, as the initiative is open to all such producers.
• No risk of potential exclusion of individual waste-companies given such an exclusion would undermine the very purpose of the initiative, and waste-companies can be competitive without receiving financial contributions from the initiative.
• No risk of coordinated price increases given the low investment costs incurred by the members of initiative. 
• No current risk of impeding innovation for the recycling of coffee capsules. However, the ACM warned that coffee capsule producers must continue to closely monitor sustainability developments and trends, which are quickly evolving.

France: collaboration between animal feed suppliers

The French antitrust agency (the FCA) has issued informal guidance to two groups representing companies in the animal nutrition sector regarding guidance for a standardised methodology for calculating a product’s environmental footprint. The FCA concluded that the methodology would not create grounds for an investigation or proceedings, provided that:

• Any exchange of sensitive information is limited to what is objectively necessary for the preparation, implementation, adoption and modification of the guidance. 
• The methodology must remain public, voluntary and non-exclusive. 
• The methodology, and underlying data being used, is based on scientifically-sound underlying principles. Otherwise, there is a risk that the methodology could cause competitors to mislead customers on the environmental impact of their products, creating potential antitrust risk for products for which environmental impact is a competitive parameter. Therefore, the methodology should use data specific to each manufacturer/supplier (rather than sector averages). The existence of third-party verification will also help ensure the quality of the data.