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The European Commission (the Commission) has issued its first informal guidance letters under the revised 2022 Notice on Informal Guidance (the 2022 notice). These letters consider the application of sustainability principles to cooperation agreements in the transport sector.
As well as being the first informal guidance letters issued by the Commission under the previously under-utilised 2022 notice, the APM comfort letter also marks the first time the Commission applied the 2023 revised Guidelines on Horizontal Cooperation Agreements (the 2023 guidelines) to a sustainability agreement. Sustainability agreements are defined as “any horizontal cooperation agreement that pursues a sustainability objective, irrespective of the form of the cooperation”. The 2023 guidelines explicitly allow for sustainability agreements which raise competition concerns where they result in verifiable efficiencies gains, are indispensable for achieving those efficiencies, that benefit consumers, and do not eliminate competition.
Background: Informal Guidance and Sustainability
In 2004, the EU modernised its competition law enforcement rules and procedures, replacing the centralised notification and authorisation system for agreements between undertakings with a self-assessment framework. The Commission’s 2004 Notice on Informal Guidance (the 2004 guidance) nevertheless already allowed undertakings to seek guidance from the Commission on “novel or unresolved questions”. However, the Commission did not issue any such “comfort letters” until 2020, when it issued two letters giving the green light on cooperation between undertakings in the health care sector in the context of the COVID-19 pandemic. The Commission then adopted the 2022 notice, which made the ability to request guidance somewhat more accessible. At the same time, the Commission signalled that it would make more frequent use of this tool, particularly to provide guidance on sustainability agreements which contribute to the objectives of the European Green Deal.
The Agreement: Decarbonising European Ports
The first guidance letter responds to a request by APM Terminals (the APM comfort letter), part of the Maersk Group. The second letter concerns an automotive licensing negotiation group for technologies covered by standard essential patents. The agreement in question in the APM comfort letter concerned a joint initiative proposed in December 2024 by APM Terminals and several other European port operators. The agreement sought to accelerate the transition from diesel-powered to electric container-handling equipment in European ports, with the aim of significantly reducing CO2 emissions.
The initiative involves the joint purchasing and setting of minimal technical specifications for battery-electric straddle and shuttle carriers used in container terminals. Many of these carriers are still diesel-powered, and port operators have been reluctant to invest in battery-electric alternatives due to their higher upfront costs and the lack of interoperability between the charging equipment from different suppliers. The proposed agreement aimed to address those issues by allowing terminal operators to pool part of their future demand for these products; improving predictability around future demand for manufacturers and suppliers and facilitating interoperability by standardising charging requirements.
Given the multi-operator nature of the agreement, APM Terminals sought the Commission’s informal opinion on whether their cooperation might raise concerns under EU competition law.
The Commission’s findings
The Commission reviewed the proposal and concluded that it did not raise competition concerns, provided certain safeguards were respected:
By applying these safeguards, the agreement would stay within the acceptable boundaries of cooperation and avoid the risk of a competition law infringement.
A Strategic shift in enforcement?
This development may signal a more proactive stance by the Commission to use its discretionary powers to foster sustainable innovation. Moreover, the Commission’s reasonably prompt response might encourage other companies to avail of the procedure (the guidance was issued within seven months of the request from APM Terminals). The case is also a concrete example of the Commission’s willingness to support industry-led initiatives to address market failures (including market fragmentation and high upfront costs) that hinder industry-wide adoption of greener solutions. It sets a precedent for businesses in other key sectors (e.g. defence, critical raw materials, AI) to seek similar informal guidance in future. Other competition authorities, including in France, the Netherlands and the UK, have provided guidance in similar circumstances.
Legal certainty and broader implications
The Commission’s guidance is not legally binding on the parties – or on third parties – and it is confined to the facts that were before the Commission. Nevertheless, it does provide much-needed clarification in an area where businesses can struggle with the uncertainty of self-assessment. In the absence of clear precedent, businesses may fear that joint initiatives might fall foul of competition rules, even where those initiative have positive environmental outcomes aligned with the European Green Deal and Fit for 55 package.
Concluding thoughts
The APM comfort letter marked a significant moment for the intersection of competition law and sustainability policy. At the very least, it shows an awareness from the Commission that competition rules which create uncertainty could act as a roadblock for progress on sustainability.
For further information in relation to this topic, please contact Damien Ryan or any member of the EU & Competition team.
With thanks to Katie McCarthy for her assistance in the preparation of this article.
Date published: 7 October 2025
