Critical Raw Materials and EU Competition Law
Teresa Ribera, Executive Vice-President of the European Commission, has a lot to do. In her September 2024 Mission Letter
, EVP Ribera is charged with “modernizing the EU’s competition policies to ensure that it supports European companies in their efforts to innovate, compete and lead the world, and contributes to our wider objectives on competitiveness and sustainability, social fairness and security.” According to her September 2024 Mission Letter, EVP Ribera is charged with “modernis[ing] the EU’s competition policy to ensure it supports European companies to innovate, compete and lead world-wide and contributes to our wider objectives on competitiveness and sustainability, social fairness and security.” This new approach “should also reflect the growing importance of resilience in the face of geopolitical and other threats to supply chains and of unfair competition through subsidies.”
Clues as to how EVP Ribera will juggle these tasks may emerge from a newly announced consultation on promoting industry cooperation to procure and recycle critical raw materials in line with EU competition rules. EVP Ribera announced the consultation by saying, “We want European industry and beyond to tell us about access through recycling these materials.” Together, we can build sustainable supply chains and transform challenges into opportunities for prosperity, innovation and resilience.” More specifically, the Commission is inviting stakeholders, particularly companies involved in the extraction, processing and recycling industries) to share insights on challenges in sourcing, processing, recycling and re-using critical raw materials and on collaboration opportunities to address these challenges.
Indeed, although the Commission has recently updated its guidelines on the assessment of cooperation agreements under Article 101 TFEU, these guidelines provide limited insight on how companies can cooperate to improve access to critical raw materials. The Commission’s 2023 horizontal cooperation guidelines (Horizontal Guidelines) contain a chapter on sustainability agreements. They also mention the potential of cooperation in recycling to promote competition, but they also emphasize the risks of such projects. The Horizontal Guidelines state that an agreement between small enterprises to collect used phones to recycle valuable raw material such as gold, copper and silver by agreeing on a common maximum price per phone is illegal even if they only represent 12% of the total market. The Vertical Guidelines of the Commission for 2022 do not go into detail about sustainability. The Vertical Guidelines did, however, not explore how stakeholders within a complex supply-chain could collaborate to improve the access to raw materials by recycling. Neither the Horizontal nor the Vertical Guidelines explore whether, and if so how, broader EU policy imperatives such as resilience and security affect the assessment of cooperation agreements.
And yet the need for broad-based cooperation to further EU policy objectives is increasingly clear. The Draghi Report on European Competitiveness for 2024 (the Draghi Report
) suggests that the Commission should provide “clear guidelines, templates, and easy access” to “companies who work together “. . . In its Clean Industrial Deal Communication, the Commission committed to “provide informal guidance to companies regarding the compatibility between cooperation projects that contribute to the achievement EU priorities and antitrust laws, especially those related to innovation and decarbonisation, and economic security within the EU,” after “a fact-finding process”. . . on how European companies currently procure and recycle the most important raw materials.”[in the Critical Raw Materials Space]The EU has already created a legislative framework for cooperation at the governmental level with the adoption of the 2024 Critical Raw Materials Act (CRMA
), which aims to secure a sustainable and diversified supply of critical raw materials. In March 2025, the Commission adopted a set of 25 Strategic Projects to increase domestic strategic raw material capacity in relation to 14 key raw materials. The projects include lithium, nickel cobalt manganese graphite and manganese which will benefit the EU battery raw materials value chain as well as magnesium tungsten. But the CRMA focuses on cooperation among EU and non-EU governments and does not clearly define a role for industry cooperation.Further to the new consultation, the Commission will initially focus on 14 raw materials of critical importance for sectors such as renewable energies, digital technologies, aerospace and defence technologies, presumably those covered in the CRMA Strategic Projects. The Commission will dig deeper into specific areas based on feedback from the consultation. By 2026, it is expected that the Commission will be ready to publish the Draghi Report’s recommendations, which will discuss in detail how companies can work together to improve the resilience of and security of EU’s critical raw materials supply chains.
