In line with its previous decision-making practice (see our previous sustainability blog posts here and here), on 8 May 2024, the German Federal Cartel Office (“FCO”) declared the implementation of a new European industry standard for reusable pot plant trays compatible with competition law.
Since 2021, companies and associations from the European Green Sector had been working together to develop criteria for the design and handling of reusable plant trays and to develop a standardised industry solution – the reusable Euro Plant Tray – to reduce plastic waste. Today, more than 95% of plant trays on the market are available as one-way solutions. The reusable Euro Plant Tray is available for supplies from the producer via wholesalers to garden centers, DIY stores, and the retail trade (visit Euro Plant Tray eG’s website for further details).
The FCO determined that the industry standard did not raise any competition concerns because (i) the cooperation and information exchange between the market participants is limited to what is strictly necessary for the implementation and operation of the re-usable plant tray system, (ii) company-specific strategic data is collected by neutral third parties and made available to the participants only in an accumulated and aggregated manner, (iii) the participation in the Euro Plant Tray scheme is voluntary and open to any market participants from different levels in the value chain, and (iv) members of the Euro Plant Tray scheme remain free to use plant trays from other suppliers.
In its press release (only available in German), the FCO stresses that the ‘Euro Plant Tray’ sustainability initiative is another good example of the FCO’s guidance on how to ensure that sustainability initiatives are embedded in competition law. The case summary to be issued by the FCO in the near future likely will reveal additional details on the FCO’s assessment. Nevertheless, more general guidance and a better understanding of the relevant factors to be considered when assessing the compatibility of sustainability initiatives with competition law would be welcome. Hopefully, the currently debated 12th Amendment to the German Act against Restraints of Competition, which (inter alia) focuses on sustainability, will provide more clarity and legal certainty.