Companies wanting to join forces with competitors on projects with a sustainability objective now have available a new tool that can offer greater legal certainty: following the lead of the European Commission, the Belgian Competition Authority (the “BCA”) has drafted its own guidelines to clarify the criteria under which a “sustainability agreement” between two competing companies can escape the prohibition against anticompetitive agreements.
How can companies work together to achieve sustainability objectives without creating “greenwashing cartels”? It’s a question that has preoccupied European competition authorities for years. Many companies that want to work together on sustainability initiatives fear prosecution by the competition authorities. A striking example comes from the Netherlands, where the ACM ruled that sustainability agreements between producers and retailers aimed at replacing conventionally produced chicken meat to improve animal welfare were not in line with competition law. This is mainly due to the complex analytical framework of competition law, which sets several strict (but sometimes vaguely interpreted) conditions for exempting agreements between competitors that may restrict competition from the prohibition against anticompetitive agreements set down in article 101 TFEU (and its Belgian equivalent, article IV.1 of the Economic Law Code).
In response to these concerns, in the summer of 2023 the European Commission issued new guidelines for assessing agreements between competitors, including a dedicated chapter on sustainability agreements. While they were generally well received, the guidelines also encountered criticism. Some argued that the Commission had failed to adequately consider the environmental benefits of such agreements and had taken too strict an approach in applying the requirements outlined in article 101(3) TFEU for exempting competition-restricting agreements.
Two years on, and following efforts by other national competition authorities (and national legislatures), the BCA has drafted its own guidelines. The consultation period will run until 20 November 2025. They come following a study that the FPS Economy published on 3 October, which already provided a series of recommendations to the BCA on this matter.
In its draft guidelines of 6 October 2025, the BCA (i) outlines general rules for assessing sustainability agreements, which are in line with the Commission’s guidelines, (ii) gives a detailed framework for analysing sustainability agreements in the agricultural sector, and (iii) implements an open-door policy allowing companies to seek informal advice from the BCA, thereby increasing legal certainty.
Regarding (i) the general rules for sustainability agreements, the BCA’s draft follows the structure of the Commission’s guidelines and is in line with them overall. Rather than introducing revolutionary or striking proposals, it serves as a “didactic summary”, clearly and concretely outlining the key concepts and principles. The draft also includes two appendices (a one-pager summarising some key rules, and a “self-assessment guide”), intended to summarise the concepts developed in the guidelines in a simple manner. In addition, the BCA draws on its limited decision-making practice in this area to provide practical examples, such as its opinion of 2022, which found that an initiative to ensure decent wages in the banana sector did not raise competition concerns.
As regards (ii) the specific rules for sustainability agreements in the agricultural sector, the draft guidelines are also inspired by the specific European guidelines recently adopted (also in 2023) in this area. Like the Commission, the BCA aims to clarify the application of competition rules, while article 210a of the CMO Regulation provides for an additional exemption for sustainability agreements in the agricultural sector.
However, this exemption is subject to several requirements: the agreement must involve at least one producer of agricultural products, relate to implementation of a sustainability standard that goes beyond existing legal requirements, and be indispensable for achievement of the sustainability standard in question.
The draft BCA guidelines address the concerns of stakeholders in the agricultural sector, who had specifically requested more guidance from the Authority. They also include a detailed analysis of the first opinion issued by the Commission earlier this summer under its own guidelines for the agricultural sector. That opinion concerns a sustainability agreement by the “Vignerons Coopérateurs de France”, in which producers set a target price for wine produced in Occitanie under environmental standards that exceed regulatory requirements.
Finally (iii), the BCA is implementing an open-door policy for sustainability agreements. There are two options, to seek informal advice (1) from the chair of the Authority, or (2) from the Prosecutor’s Office. In practice, informal advice from the chair of the Authority is subject to relatively stringent conditions: notably, the agreement must be submitted prior to implementation, and the advice is published on the Authority’s website. As a result, seeking advice from the Prosecutor’s Office instead may be more appealing for several reasons:
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Advice from the Prosecutor’s Office is more informal, both in terms of submitting the request and receiving a response (which can be issued verbally, by email or by post).
- These opinions are not generally published unless the parties agree to a press release.
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The Prosecutor’s Office undertakes not to investigate parties that submit a sustainability agreement for review, provided that they comply with the guidance outlined in terms of the advice. This also applies to any anti-competitive effects that may arise from the sustainability agreement in question in the year prior to its being submitted to the Prosecutor’s Office.
Finally, the BCA aims to respond to informal advice requests within three months.
