Environmental Joint Purchasing: CMA and ACM Insights

In recent weeks, European regulators have published two informal opinions on joint environmental sustainability initiatives, providing greater insight into their regulation in the context of competition law.

On 23 January 2026, the Competition and Markets Authority (CMA) published its fourth informal opinion under its Green Agreements Guidance (see our October 2023 update) relating to a framework scheme jointly procuring agricultural and nature-based solutions. This followed an informal opinion from the Dutch competition regulator (ACM) on 12 January 2026, providing advice on a joint purchasing initiative under its policy rule on sustainability agreements.

What you need to know

• In its fourth informal opinion under the Green Agreements Guidance, the CMA considered 3Keel's Landscape Enterprise Networks (LENs) initiative, which facilitates collaboration between investors, farmers, land managers and land owners for regenerative agriculture and nature-based projects with environmental benefits.
• The ACM informal opinion relates to an initiative by Dutch masonry brick manufacturers to establish a cooperation to manage a returns system for a re-usable 100% recycled pallet, which replaces single-use wooden pallets.
• Both opinions assess the framework of the collaboration initiatives and have a number of common themes that provide helpful guidance on the application of competition law to environmental sustainability initiatives in these jurisdictions, including practical tips relating to eligibility criteria, coordination risks, the exchange of competitively sensitive information (CSI) and joint purchasing requirements.

Background

In recent years, many regulators have shown an increasing interest in the potential impact of competition law on businesses' willingness and ability to collaborate on environmental sustainability initiatives. Whilst the scope of regulations governing such agreements varies globally, in Europe a number of regulators (including the CMA and ACM) have sought to ensure that competition law does not have a chilling effect on sustainability collaboration initiatives by providing guidance and comfort on their approach to the application of competition law to such initiatives.

CMA's approach to ESG collaboration initiatives

In the UK, the CMA has published guidance on the application of the Chapter 1 prohibition to sustainability agreements between businesses operating at the same level of the supply chain (Green Agreements Guidance) (see our October 2023 update). The Green Agreements Guidance introduced the CMA's "open door policy" through which companies can receive informal guidance on environmental and sustainability collaboration initiatives. The CMA subsequently published three informal opinions in 2024 and 2025 on: Fairtrade's Shared Impact Initiative in December 2023; WWF-UK's proposal that retailers make joint commitments to reduce greenhouse gases in their supply chain by adopting science based targets (see our March 2024 update); and the Builders Merchants Federations' recommendation of a single preferred platform for supplier ESG credentials (see our April 2025 update).

The CMA has shown a continued intent to support collaboration efforts between companies in relation to environmental sustainability agreements that comply with its Green Agreements Guidance. This is likely to continue, as promoting effective competition (including through stepping up action to enable legitimate, pro-growth business collaboration) is one of the five core objectives of the CMA's 2026 to 2029 strategy. Facilitating pro-growth collaboration in relation to environmental sustainability agreements is also mentioned as a specific annual priority for competition enforcement in the draft 2026 to 2027 annual plan. This reflects the innovation and economic benefits that can be achieved through such agreements, as well as their contribution to facilitating sustainable growth.

CMA informal opinion on collaborative environmental initiative

Overview of the initiative

In this context, the CMA has issued its fourth informal opinion on a proposal by 3Keel to establish an initiative to co-fund and manage LENs (the Informal Opinion). LENs connect businesses, public bodies and NGOs interested in investing in local environmental projects (Investors) with farmers, land managers and land owners (collectively referred to as Farmers) that carry out the work. Given the number of participants involved, it is possible that the Investors could be from the same sector or that Farmers may be competitors. As the scheme involves the Investors' joint funding of Farmers' collaborative projects, the scheme relied on joint purchasing and joint selling arrangements. The LENs scheme is operated by 3Keel, a consultancy firm responsible for generating demand from investors and matching it to the Farmers' supply (including via 'supply aggregators', i.e. NGOs or commercial entities that work with Farmers to develop proposals).

The projects focus on regenerative agriculture and nature-based solutions, including improving crop resilience, reducing greenhouse gas emissions and increasing biodiversity. Once proposals are received, 3Keel will score them based on criteria and allocate the best proposal to the appropriate Investor, without requiring interaction with the Investors. At the contracting stage, all signatories to the agreement (i.e. including 3Keel, the Investors, supply aggregators and Farmers) will see the price paid for a particular measure (which are uniform prices for Investors), even if they were not a purchaser of that measure. The Investors will also see the identity of other Investors funding a project.

The CMA's assessment

The CMA considered the LENs scheme as a "mixed agreement" under its Green Agreements Guidance on the basis it involves both climate change and other sustainability initiatives. The LENs scheme involves the parties entering into both joint selling and joint purchasing agreements. Given the fact-specific nature of these agreements, the CMA considered that it would not be able to provide detailed informal guidance on the agreements themselves, and the informal guidance therefore focuses on the overall framework of the proposed scheme

The CMA initially considered whether the LENs scheme would fall into any categories that the Green Agreements Guidance considers unlikely to infringe Chapter 1 of the Competition Act 1998.

• In relation to agreements that do not affect the main parameters of competition, the CMA concluded that sustainability activities can represent a parameter of competition between the businesses selling their products to consumers, such as meeting sustainability targets and improving the resilience on the natural resources upon which their businesses rely.
• In relation to agreements to do something jointly that the parties cannot do individually, the CMA noted this category is limited in scope, could not be applied in the abstract and would not apply if Investors could independently carry out some projects.

In this context, the CMA's advice considered the following specific areas of the LENs scheme framework.

Scheme eligibility criteria: the CMA emphasised the need for eligibility criteria relating to the Investors to be reasonable and necessary, not exclusionary (i.e. capable of being met by a wide range of businesses) and not discriminatory. It considered these requirements to be met by 3Keel's criteria, which 3Keel noted were necessary given the high onboarding costs for new Investors. In relation to the Farmers, the CMA noted 3Keel should encourage wide participation, such as by ensuring promotion of the scheme has a broad reach.

Guide prices: the LENs scheme involves the supply of non-binding guide prices to Farmers and supply aggregators, which Investors also had sight of, to assist the Farmers in pricing. 3Keel emphasised that Farmers are free to price above or below the guide prices, there were no incentives or punitive measures attached to them and Farmers are not made aware of the prices actually charged by others. 3Keel considered the use of a guide price to be necessary to facilitate the effective operation of the scheme, and to prevent Farmers from pricing too high thereby deterring investment or too low resulting in inadequate funding.

At a horizontal level, the CMA considered that any agreement or concerted practice between the Farmers as to the use of guide prices would be likely to restrict competition by object. However, the CMA concluded that the LENs scheme did not appear to involve any such agreement or concerted practice and that there was no evidence of any direct or indirect contact between Farmers regarding the use of guide prices. The CMA's analysis of the guide prices demonstrates the importance of ensuring that any proposed environmental sustainability agreement does not involve or facilitate horizontal coordination on key parameters of competition (in particular, price).

The CMA also considered the role of the guide prices in the vertical agreements between 3Keel and the Farmers. It concluded that the agreements would not fall within scope of the Vertical Agreements Block Exemption Order, as it could not exclude the possibility that 3Keel's market share may exceed 30%. The CMA therefore conducted on an effects analysis, noting the guide prices would be liable to generate an adverse effect on competition if they facilitated collusion between Farmers or acted as a focal point which softened competition. Its analysis identified both factors that mitigated the guide prices functioning as a focal point, as well as those that increased the risk of them doing so:

The CMA noted that it was not asked to assess whether the agreements may be permitted as an ancillary restraint or exempted under the Competition Act 1998. However, it suggested a number of measures to mitigate risks to competition attached to guide prices, which may be relevant to other initiatives considering similar mechanisms:

• Considering the appropriateness of guide prices at relevant intervals (in this case, ahead of each LENs funding cycle).
• If guide prices are necessary, considering if price ranges could be used instead.
• Ensuring that guide prices (or price ranges) are non-binding and that participants are not disincentivised from deviating from the prices.
• Avoiding statements to participants (in this case Farmers) on whether the guide prices have been, are likely to be or will be relied upon in practice.

Risk of coordination: there is a risk that any scheme operators (such as 3Keel) may have the ability and incentive to cooperate with certain scheme participants (e.g. where they are existing clients or key partners) and so distort competition within the scheme. The CMA therefore provided guidance on policies that could be put in place to reduce the risk of coordination:

• Conflicts of interest: implementing a conflicts of interest policy to govern the role of the scheme operator and confirm how it will guard against the risk of coordination with participants, including covering the identification, management and prevention of conflicts. The policy should include the steps taken to identify and assess conflict risks, staff expectations, the procedures staff should follow when a conflict of issue arises and examples of conflicts to assist staff.
• Scheme governance: introduce scheme rules for matching of demand and supply, and a record of the application of these rules to particular projects for transparency purposes.

Information exchange: the CMA identified a number of potential risks relating to the exchange of CSI under the scheme. It noted that these were fact-specific, and would require self-assessment by 3Keel, but considered that the risks could be mitigated through the use of clean teams or independent third parties, in addition to aggregating and anonymising information where possible.

The CMA's conclusion

Whilst the CMA confirmed that it does not expect to take enforcement action against the scheme framework, this assurance was based on the specific areas assessed and is tied to a number of conditions reflecting a number of the practice points outlined above.

ACM's approach to ESG collaboration initiatives

In the Netherlands, the ACM has a policy rule (English translation version) in relation to sustainability agreements that may otherwise infringe Article 6, paragraph 1, of the Dutch Competition Act and Article 101 of the Treaty on the Functioning of the European Union (the Policy Rule). The Policy Rule relates to all agreements that pursue a sustainable objective, extending to activities that support economic, environmental and social development. The Policy Rule sets out that, in principle, the ACM will not investigate agreements that regard compliance with (i) a binding sustainability rule, or (ii) national or international standards or policy goals to prevent or reduce environmental damage, provided certain criteria are satisfied. Similar to the CMA, the ACM provides informal guidance on sustainability agreements based on a review of the participants' self-assessment. The ACM's intent to provide such guidance is likely to continue, as its 2026 agenda states that the ACM supports the development of a sustainable economy and innovative solutions to achieve this, including by reviewing sustainability agreements.

ACM informal guidance on pallet return system for masonry bricks

Overview of the initiative

On 12 January 2026, the ACM issued informal guidance on the creation of a standardised, reusable pallet for masonry bricks and the establishment of a returns scheme (English translation version). The proposal was initiated by members of the Royal Dutch Construction Ceramics Association (KNB) to address the predominant practice of single-use wooden pallets. The returns system would utilise more robust, standardised pallets made from 100% recycled plastics and manufactured using green power, with a 10 year life expectancy. KNB expects all 11 brick manufacturers in the Netherlands will participate in the scheme and businesses outside of the country could also participate (though collection services were restricted to the country).

The initiative would involve establishing a non-profit organisation (the Cooperation) with all funds put towards continuity of the initiative. The pallets would be purchased by the Cooperation and loaned to the manufacturers on payment of a deposit fee, which would be refunded on return of the pallets. Additional fees for the purchase of new pallets and maintaining the return system would also apply. The Cooperation would engage a "pooling partner" to run the scheme.

KNB considered that collaboration between the manufacturers, through the Cooperation, was necessary to develop a return pallet and establish the returns system. This is because individual manufacturers would be unwilling or unable to make the required investments and were individually too small to establish and maintain a returns system. Collaboration enabled the scheme to be organised more efficiently, given the pallets would be interchangeable, transport optimised and economies of scale could reduce the price of pallets.

The ACM's assessment

The ACM accepted that the initiative pursued a sustainability objective by reducing CO2 emissions, contributing to the sustainability transition, and could therefore be assessed pursuant to the Policy Rule. The ACM agreed with KNB's self assessment that the initiative did not have an appreciable restriction on competition, which was supported by the following factors:

• Open initiative: the initiative was open to all masonry brick manufacturers in the Netherlands and there were no eligibility criteria. Whilst the initiative was limited to manufacturers in the Netherlands during the start up phase, non-Dutch manufacturers could participate in relation to their Netherlands activities.
• Voluntary participation: participation in the Cooperation was voluntary.
• Purchase requirements: participants could choose to buy and use other pallets outside of the Cooperation or multisource. There was also no minimum purchase requirement.
• Limited information exchange: The Cooperation did not involve any sharing of CSI among competitors, with any exchanges of information limited to those necessary for the proper functioning of the initiative. This includes limiting certain information to the pooling partner only and aggregating data where possible. If it became necessary to share CSI with the Cooperation, this would be shared with an independent administrative secretary and independent accountant.

The ACM did not otherwise consider the initiative to have any negative effects on competition. In particular, the small market shares of the participants meant the joint purchases would not result in buyer power and pallet manufacturers would continue to have an incentive to innovate.

The ACM imposed a condition requiring the initiative to ensure it did not have any negative effect on investments by manufacturers to make the pallets more sustainable. This included adhering to the sustainability standards included in the self-assessment, continued investment to further improve the sustainability of the return pallet and ensuring that any decision to re-tender for the manufacturer would be based on the best available knowledge on sustainability and technology.

The ACM also found that the initiative was forecast to reduce costs for masonry brick manufacturers and downstream customers (though the decision to pass on cost reductions would be at the discretion of each individual manufacturer). However, the joint purchasing did not harmonise all costs for manufacturers, as the pallets represented <5% of the total costs of a pallet plus masonry bricks. The ACM was also satisfied that the initiative would not lead to a reduction in quality.

The ACM therefore considered the initiative to be compatible with the competition rules and did not find there to be any risk of an appreciable restriction on competition.

Comment

Both informal opinions provide welcome further clarification on the application of competition law to environmental sustainability initiatives in the respective jurisdictions, with some interesting points of practice on joint purchasing in particular, including the importance of having reasonable and non-discriminatory eligibility criteria, restrictions on the exchange of competitively sensitive information and limits on any purchasing requirements. The CMA's Informal Opinion also provides clear guidance on the assessment of guide prices in the context of a joint purchasing framework, including explaining the instances in which these may be permitted and suggesting alternatives that could mitigate the risks to competition attached to guide prices.

The continued interest in providing such guidance shows the regulators' willingness to support businesses in establishing environmental sustainability initiatives and ensuring that they are legally compliant. For example, the CMA provided guidance on the framework of the joint purchasing and selling initiative notwithstanding that each of the individual project agreements would need to be self-assessed, demonstrating the ability for participants to receive advice even where parts of the initiative are not finalised. The CMA's approach, however, emphasises the continued importance of self-assessment, given that the analysis of many arrangements is fact-specific.

Finally, both informal opinions highlight the potential risks that participants may be exposed to where they enter into environmental sustainability initiatives with entities at different levels of the supply chain including, in relation to the CMA's Informal Opinion, businesses whose primary activities relate to different sectors. The guidance provides added clarity in these scenarios, which is helpful in light of the potential risks that can arise, particularly where sensitive information such as pricing is being shared. However, the complexity of these arrangements and the analysis is demonstrated by the fact the CMA's assurance that it does not expect to take enforcement action against the scheme is subject to a number of conditions that limit the competition law risks. Businesses should be conscious of this and ensure they are seeking tailored legal advice where appropriate.

Want to know more?

• CMA's informal opinion on ESG supply chain initiative: important lessons, 3 April 2025
• CMA publishes informal guidance under Green Agreements Guidance, 25 March 2024
• New UK Green Agreements Guidance published, 17 October 2023