23.11.2016   

EN

Official Journal of the European Union

C 432/6

(1)

On 20 September 2016, the European Commisison adopted a decision against the Austrian company Altstoff Recycling Austria Aktiengesellschaft (‘ARA’) for infringing Article 102 of the Treaty on the Functioning of the European Union and Article 54 of the EEA Agreement (the ‘Decision’). The Decision establishes that from 1 March 2008 until at least 2 April 2012 ARA abused its dominant position on the market for the exemption of household packaging waste and imposes a fine on ARA. Since ARA acknowledges the infringement, the fine is reduced. The Decision also imposes a remedy on ARA consisting of the divestiture of the household collection infrastructure owned by ARA in order to ensure that the infringement cannot be repeated in the future.

(2)

The present case was triggered by an informal complaint by the company EVA GmbH, later renamed Interseroh Austria GmbH (in the following ‘Interseroh’).

(3)

Following unannounced inspections carried out by the Commission in 2010, the Commission initiated proceedings under Article 2(1) of Commission Regulation (EC) No 773/2004 (2) on 15 July 2011. On 17 July 2013, the Commission adopted a Statement of Objections (‘SO’) addressed to ARA and an Oral Hearing took place on 26 November 2013. The Commission further addressed to ARA two Letters of facts (‘LoF’) on 10 September 2014 and on 15 February 2016.

(4)

On 21 July 2016, ARA submitted a formal offer to cooperate (‘Cooperation Submission’) by acknowledging the infringement of refusing access to the indispensable household collection infrastructure from 1 March 2008 to 2 April 2012. ARA also suggested a structural remedy in the form of a divestiture of its own part of the household collection infrastructure and acknowledged it as necessary and proportionate.

(5)

The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 4 August 2016.

(6)

ARA is an exemption system that collects and recycles the packaging waste on behalf of the producers of the goods. It thereby ‘exempts’ the producers of their legal obligation to collect and recycle such waste themselves. Producers pay a ‘licensing fee’ for such ‘exemption services’.

(7)

Packaging waste may occur at households (‘household packaging waste’) or at commercial end-use sites (‘commercial packaging waste’). The service concerned by the infringement is the exemption of packaging which occurs as waste at households (‘exemption of household packaging waste’).

(8)

ARA does not itself collect the packaging that it has licensed, but via collection service providers (‘collectors’) and municipalities under contract with ARA. ARA has set up its household collection infrastructure in the whole of Austria, in particular for lightweight (mainly plastic) and metal packaging waste (the ‘household collection infrastructure’). The larger part of the household collection infrastructure is owned by collectors and municipalities. ARA itself owns a smaller part of the household collection infrastructure.

(9)

Under Austrian law in force during the period of infringement (from 1 March 2008 until at least 2 April 2012), any company wishing to enter the household exemption market had to prove a nationwide coverage of the collection system in order to obtain the required system authorisation from the Austrian Federal Ministry of Agriculture, Forestry, Environment and Water Management (‘the Ministry’).

(10)

The Decision establishes that, during the period of infringement, the household collection infrastructure could not be duplicated and represented an indispensable input for entry into the household exemption market. Due to legal, practical and economic obstacles it was highly unlikely that a company planning market entry would have received a system authorisation from the Ministry on the basis of a duplicated household collection infrastructure. The Ministry had in the past expressed clear concerns regarding a duplication of the household collection infrastructure.

(11)

During the period of infringement, ARA was the only fully fledged exemption system on the market for the exemption of household packaging waste and was therefore dominant. ARA had the only comprehensive household collection infrastructure. When Interseroh requested access to the household collection infrastructure, ARA refused such shared use. ARA did so by imposing unjustified access conditions to a shared use of the household collection infrastructure by its competitors and, in particular, by limiting potential access to its household collection infrastructure to individual regions, despite the fact that the household collection infrastructure can be duplicated neither in individual regions nor on a nationwide basis in the whole of Austria and is indispensable for market entry.

(12)

The Decision establishes that ARA thereby abused its dominant position on the market for the exemption of household packaging waste by refusing potential competitors access to the household collection infrastructure which cannot be duplicated.

(13)

On 21 July 2016, ARA submitted a formal Cooperation Submission. The Cooperation Submission contains, in particular, an acknowledgement in clear and unequivocal terms of ARA’s liability for the infringement of having negligently refused access to the indispensable household collection infrastructure from 1 March 2008 to 2 April 2012. ARA made its Cooperation Submission conditional upon the imposition of a maximum fine which will not exceed the amount as specified in ARA’s Cooperation Submission.

(14)

The infringement started on 1 March 2008 (the month in which ARA refused Interseroh’s request for shared use). It lasted until at least 2 April 2012, when a new Austrian draft waste law (‘AWG 2013’) was consulted with market participants and interested parties. The draft law provided clarity on the legal obligation to give access to the household collection infrastructure controlled by ARA and ensured that ARA could no longer prevent municipalities and collectors from granting shared use to other exemption systems.

(15)

While the AWG 2013 (as well as the draft of April 2012) does not provide full clarity with respect to the household collection infrastructure which ARA owned during the period of infringement, the Commission does not have sufficient evidence to show that ARA continued its refusal to give access to the household collection infrastructure it owned after 2 April 2012, when the circumstances of the market changed significantly due to the consultation of the draft AWG 2013.

(16)

The Decision therefore considers that the infringement started on 1 March 2008 and lasted until at least 2 April 2012.

(17)

In fixing the amount of the fines, the Commission has regard both to the gravity and the duration of the infringement. The infringement started on 1 March 2008 and lasted until at least 2 April 2012.

(18)

There are no aggravating or mitigating circumstances in this case.

(19)

A reduction of 30 % of the fine is applied for the cooperation by ARA. ARA has cooperated in the procedure by acknowledging the infringement, by allowing for procedural efficiencies as well as by suggesting a remedy to ensure that the infringement cannot be repeated in the future.

(20)

As a result, the final amount of the fine imposed on ARA pursuant to Article 23(2) of Regulation (EC) No 1/2003 is EUR 6 015 000.

(21)

The Decision requires from ARA to divest the part of the household collection infrastructure which ARA owns. This remedy was suggested by ARA in its Cooperation Submission. ARA acknowledges that this divestiture is necessary and proportionate to fully terminate the infringement.

(22)

The remedy is necessary. The AWG 2013 does not explicitly address the obligation by an exemption system to grant access to the own part of the household infrastructure in case the competitor wants to achieve shared use via contracts with collectors and municipalities. The divestiture of ARA’s own infrastructure is therefore necessary to ensure that the most direct means of refusal is not any longer available to ARA and that ARA does not recommence the abuse.

(23)

The remedy is also proportionate since there is no other less burdensome measure which would equally effectively remove the potentially remaining legal uncertainty as to ARA’s obligation to grant shared use to this part of the infrastructure and ensure access to it.