The Belgian Competition Authority (BCA) has released its long-awaited guidelines on how companies may cooperate on sustainability objectives without breaching antitrust rules (the BCA Guidelines). While largely based on the European Commission (EC) guidelines on horizontal cooperation agreements, the BCA Guidelines introduce some novelties that are directly relevant to businesses operating in or with exposure to the Belgian market.
General framework for self-assessment
Sustainability agreements are agreements between undertakings that pursue one or more sustainable development objectives, for example combating climate change, limiting the use of natural resources, reducing food waste, or ensuring animal welfare.
The BCA Guidelines recognize that such agreements are not, as such, prohibited under antitrust law and set out a framework for self-assessment. A first step is to consider whether an agreement falls outside the prohibition on anticompetitive agreements (Article 101(1) TFEU and its Belgian equivalent Article IV.1 of the Code of Economic Law). The BCA Guidelines identify several categories of sustainability agreements that are unlikely to restrict competition:
- Agreements relating to purely internal corporate conduct
- Agreements sharing information over the sustainability practices of suppliers or distributors
- Agreements raising consumers' awareness of the impact of their consumption habits
A particular type of sustainability agreements are "sustainability standardization agreements" — collaboration between competitors defining rules, characteristics, or requirements for products and processes to meet sustainability goals. They fall outside Article 101(1) TFEU when they provide for open participation and voluntary compliance, set only minimum requirements, limit information exchange to what is proportionate, ensure non‑discriminatory access, and do not give rise to significant restrictions of competition.
If a sustainability agreement falls within the scope of Article 101(1) TFEU, it must be assessed under the traditional two-step approach: whether it restricts competition by object or by effect, and whether it qualifies for an Article 101(3) TFEU exemption (efficiency gains passed on to consumers, indispensable restrictions, no elimination of all competition). Importantly, the BCA Guidelines clarify that "consumer benefits" includes broader environmental and collective benefits, even where those benefits accrue to a wider group than just the consumers in the relevant market.
Self-assessment of sustainability agreements in the agri-food sector
Article 210a of EU Regulation No 1308/2013 (CMO Regulation) excludes sustainability agreements in the agri-food sector from Article 101 TFEU provided that (i) at least one producer of agricultural products is a party, (ii) the aim is to apply a sustainability standard higher than mandated by EU or national law, and (iii) restrictions are indispensable. The BCA Guidelines provide more detailed guidance than the EC's 2023 guidelines, illustrating that the agri-food sector is a key BCA focus.
Where an agri-food sustainability agreement does not meet the Article 210a CMO Regulation conditions (e.g. distributor-retailer agreements without a producer), the BCA will apply Article IV.1(3) CEL in line with the Article 210a exemption — allowing a common assessment framework that can facilitate distributor-retailer cooperation.
Comfort through informal advice and enforcement protection
The BCA provides two procedures for informal advice:
- Informal opinion from the BCA president — when (i) the agreement is not yet concluded and is sufficiently concrete, (ii) no related practices are under investigation, and (iii) the subject matter is a novel legal question of "sufficient economic or societal importance".
- Informal advice from the competition prosecutor (CP) — under less stringent conditions: the agreement may already be concluded and the legal questions need not be novel.
The CP commits not to open an investigation where it has issued informal advice on a fully and transparently submitted agreement and parties implement it in line with the agreed conditions. This non-enforcement commitment goes well beyond informal guidance offered by other EU antitrust authorities and extends to anticompetitive effects arising in the year prior to submission. If an agreement may eventually lead to anticompetitive effects, the CP may advise alteration or termination and start enforcement proceedings if the advice is not followed.
Relationship with the EC horizontal cooperation guidelines
Compliance agreements — The EC guidelines exclude from Article 101 TFEU sustainability agreements aimed at compliance with internationally binding (not yet implemented) legislation, but are unclear on EU/national-law compliance agreements. The BCA Guidelines explicitly extend the exclusion to EU and national legislation under the same conditions.
Information about sustainability practices of suppliers or distributors — Both sets of guidelines exclude from Article 101 TFEU agreements to share information about sustainability practices, provided no obligation, restriction or prohibition of trade relations is imposed. The BCA goes further: assessment of suppliers/distributors against sustainability criteria also falls outside Article 101 TFEU, provided the criteria are open, transparent and non-discriminatory.
Misuse of sustainability claims as an aggravating factor — The BCA Guidelines explicitly state that using sustainability claims to cover anticompetitive conduct will be an aggravating factor in penalty determination — a stronger position than the EC guidelines, which acknowledge the risk but do not explicitly link it to increased fines.
Key takeaways
- Clarity — Compliance agreements also cover national and EU law; concrete examples make the BCA Guidelines a practical tool for in-house counsel.
- Procedural innovations — Informal advice procedures and the CP's non-enforcement commitment offer a path to legal certainty unmatched by other EU national authorities.
- Misuse of sustainability claims — Will lose the benefit of sustainability assessment and likely attract heavier penalties.
- No free pass — Sustainability agreements only benefit from exclusion or exemption when specific conditions are met; a sustainability objective is not an easy way out of antitrust concerns.
Authors:
- Eliana Paredis (Partner, Brussels)
- Joris Gruyters (Trainee, Brussels)
- Janek Nowak (Associate, Brussels)
- Tarek Abdelali (Trainee, Brussels)
