Sustainability in Antitrust Law

German Federal Cartel Office gives the green light for the introduction of a reusable system in the plant trade

Sustainability is an urgent necessity for our society and our planet. Sustainability is also playing an increasingly important role in antitrust law. Companies are faced with the challenge of finding innovative ways to make their business practices more sustainable without violating antitrust regulations.

Sustainibility at European level

At European level, sustainability cooperations are dealt with, for example, in the European Commission's Horizontal Guidelines[1]. However, sustainability cooperations should not be exempted from the ban on cartels simply because they pursue sustainability objectives. If there is a restriction of competition, the sustainability objectives must continue to manifest themselves in the form of a concrete advantage for the consumer affected by the agreement (Art. 101 (3) TFEU).

The Competition Merger Brief 2/2003[2] also deals with the topic of sustainability within merger control and shows how the overarching objective of climate neutrality of the European Green Deal can be pursued.

Sustainibility on German level

The German Federal Cartel Office has now also revisited the issue of sustainability and given the green light for the introduction of a reusable system in the plant trade, proposed by Euro Plant Tray eG[3]. This cooperative association of companies in the European plant trade and industry associations aims to replace single-use plastic trays with an environmentally friendly reusable system for the B2B transportation of potted plants. However, Andreas Mundt, President of the German Federal Cartel Office, also emphasizes that sustainability initiatives must also be measured against the standards of antitrust law and that sustainability requires long-term functioning competition.

In this specific case, however, the reusable system was deemed permissible under antitrust law, as the coordination and exchange of information between the (market) participants is reduced to the extent necessary for the introduction and operation of the reusable system. In addition, it is an open system, i.e. participation is voluntary, is also open to non-members of Euro Plant Tray eG and members can also use disposable trays from other suppliers.

May 9, 2024

Immo Schuler, LL.M. (UNC)

Immo Schuler advises on all questions of German and European antitrust law.