{"id":46287,"date":"2025-02-12T16:51:58","date_gmt":"2025-02-12T15:51:58","guid":{"rendered":"https:\/\/www.eh.at\/?p=46287"},"modified":"2026-02-09T17:53:23","modified_gmt":"2026-02-09T16:53:23","slug":"the-austrian-sustainability-exception-the-green-opportunity-for-cooperation-between-competitors","status":"publish","type":"post","link":"https:\/\/www.eh.at\/en\/the-austrian-sustainability-exception-the-green-opportunity-for-cooperation-between-competitors\/","title":{"rendered":"The Austrian “sustainability exception” – the (green) opportunity for cooperation between competitors"},"content":{"rendered":"\t\t
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12.02.2025<\/p>\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

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Against the backdrop of the European Green Deal, the issue of whether sustainability aspects can play a role in antitrust law has come to the fore in the EU. Central questions were, in particular, whether environmental and climate initiatives between competitors (“sustainability agreements<\/strong>” or “sustainability cooperation<\/strong>“) can be exempted from the ban on cartels and under what conditions.<\/p>

While the European Commission addressed this issue in its revised guidelines on the applicability of Art 101 TFEU to horizontal cooperation agreements, the Austrian legislature even went one step further and created a sustainability exception <\/strong>in \u00a7 2(1) KartG, which is unique in the EU to date, as part of the 2021 Cartel and Competition Law Amendment Act. To this end, the sentence “Consumers <\/em><\/strong>also have a fair share if the profit <\/strong>resulting from the improvement of the production or distribution of goods or the promotion of technical or economic progress contributes significantly to an ecologically sustainable or climate-neutral economy<\/strong><\/em>” was added. With the guidelines on the application of \u00a7 2(1) KartG to sustainability cooperation (“Sustainability Guidelines<\/strong>“)[1], the Federal Competition Authority (“FCA<\/strong>“) offers legal practitioners detailed assistance in their antitrust assessment of planned sustainability cooperation.<\/p>

Recent decisions by competition authorities <\/strong>show that sustainability cooperation can be successfully implemented in accordance with antitrust law: In 2024, for example, the Dutch competition authority expressed no competition concerns about the introduction of an industry-wide sustainability standard by the trade association for the e-commerce sector for online stores. In 2024, the German Federal Cartel Office also expressed no concerns regarding a sustainability standard for reusable systems for the B2B transport of potted plants instead of disposable trays. Last year, the Japanese competition authority also approved a sustainability cooperation on carbon neutrality between five petrochemical companies located in the same business park.<\/a><\/p>\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

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The Austrian sustainability exception<\/h2>\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
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According to the sustainability exemption under \u00a7 2(1) KartG, a sustainability cooperation that restricts competition may be exempt from the ban on cartels under the conditions that (i<\/strong>) the cooperation contributes to an ecologically sustainable or climate-neutral economy through efficiency gains (i.e. purely economic, social, or animal welfare aspects are not covered) and (ii<\/strong>) EU competition law does not apply because it does not meet the intergovernmental criterion.<\/p>

The following five requirements <\/strong>must be met cumulatively <\/strong>for the sustainability exception:<\/p>\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

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