Sustainability agreements in port terminals and competition policy: A European opening?

This paper analyses the European Commission’s first informal opinion on a sustainability agreement between competing port terminal operators, representing a landmark case aimed at reconciling decarbonisation objectives with European competition law. Our study focuses on a specific project involving APM Terminals and its competitors in jointly purchasing and standardising electrical container handling equipment. This cooperation is presented as a necessary response to rising costs and the oligopolistic nature of the equipment supplier market. We contribute to the literature by providing an in-depth analysis of the European Regulator’s first public application of its 2023 Guidelines on Sustainability Agreements, highlighting the legal challenges posed by this horizontal cooperation under Article 101 of the Treaty on the Functioning of the European Union. Our analysis demonstrates that the Commission did not grant the benefit of an informal ‘soft safe harbour’ to the agreement but ultimately issued a favourable opinion following an individual case assessment. This intervention signals a complex yet significant shift in European competition policy, explicitly accommodating collective decarbonisation efforts. However, this decision leaves important questions unanswered, such as the evaluation of societal benefits arising from sustainability agreements, and suggests the possible influence of geopolitical industrial considerations.