Commission provides guidance on sustainability agreement to reduce CO2 emissions in European ports

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The European Commission has issued informal guidance on the compatibility with EU competition rules of a sustainability agreement for the joint purchasing and the setting of technical specifications for electric container-handling equipment used in ports. This would accelerate the shift from diesel to electric equipment in EU ports, contributing to reducing CO2 emissions.

This informal guidance letter is issued at the same time as another one regarding a licensing negotiation group in the automotive sector. These are the first guidance letters the Commission issued under therevisedNotice on Informal Guidance of 2022. This Notice allows businesses to seek informal guidance from the Commission on the application of EU competition rules to novel or unresolved questions, helping them making an informed assessment of their agreements or unilateral practices.

The agreement

APM Terminals, a port terminal operator that is part of the Maersk Group, requested the Commission to provide informal guidance on an agreement with other port terminal operators for the joint purchasing and the joint setting of minimum technical specifications of battery-electric straddle and shuttle carriers. This is a common type of container-handling equipment used at ports.

Most straddle and shuttle carriers used in European ports are diesel-powered. Port terminal operators have been reluctant to purchase battery-electric carriers due to significantly higher costs, but also due to the lack of interoperability, in particular, between charging equipment from different suppliers.  

Hence, the envisaged agreement aims at reducing the costs for port terminal operators (i) by allowing them to pool a part of their future demand of these products; (ii) by providing suppliers with a more predictability about future demand; and (iii) by improving interoperability, in particular, between charging equipment produced by different suppliers.

The informal guidance letter

The Commission considers that the proposed agreement does not raise concerns under Article 101 of the Treaty on the Functioning of the European Union (‘TFEU’), provided it includes certain safeguards aimed at ensuring, amongst other things:

(i) the ability of the participating port terminal operators to each continue purchasing straddle and shuttle carriers independently;

(ii) that the volume of demand that is pooled through the agreement is capped and therefore does not give rise to anti-competitive effects vis-à-vis the suppliers of these products; and

(iii) that the exchange of competitively sensitive information between participating terminal operators remains limited to what is strictly necessary for the functioning of the agreement.

The Commission primarily based its guidance on the information provided by APM Terminals. The guidance remains applicable for five years and is limited to the territory of the European Economic Area (‘EEA’).

Background

In December 2024, APM Terminals filed a request for informal guidance under the revised Commission Notice on informal guidance relating to novel or unresolved questions concerning Articles 101 and 102 of the TFEU that arise in individual cases.

Article 101 of the TFEU prohibits agreements, decisions of associations of companies, and other restrictive business practices that may affect trade and prevent, restrict or distort competition within the Single Market. 

Regulation 1/2003 sets up an enforcement system for Articles 101 and 102 TFEU based on self-assessment, as businesses are generally well-placed to assess the legality of their actions.

However, Regulation 1/2003 allows the Commission to provide informal guidance to companies in cases presenting novel or unresolved questions for the application of the EU competition rules, in line with the Notice on Informal Guidance. A request for guidance does not create an entitlement to receive guidance, as that would be inconsistent with the self-assessment framework of Regulation 1/2003. Nonetheless, the Commission may provide such informal guidance concerning the interpretation of the EU competition rules in a written statement (guidance letter) where it considers it appropriate and subject to its enforcement priorities.

Under the Notice, guidance letters are intended to help companies carry out themselves an informed assessment of their agreements or unilateral practices. The relevant companies remain responsible for carrying out their own self-assessment of the applicability of the EU competition rules.

Guidance letters reflect the Commission’s observations on the facts presented by the applicants in the request and do not create any rights or obligations for the applicants or any third party. They are expressly conditioned on the accuracy and truthfulness of information provided by the applicants, and any material divergence from the information provided by the applicants will render the guidance letter inoperative. Guidance letters cannot prejudge the assessment of the same questions by the Court of Justice of the European Union.

The Commission will publish a non-confidential version of the guidance letter on its competition website, in the public case register under the case number AT.40976 as soon as any confidentiality requests have been addressed.