Schoenherr has advised Altstoff Recycling Austria (ARA) in proceedings before the European Commission regarding an alleged infringement of Article 102 of the Treaty on the Functioning of the European Union.
Article 102 TFEU prohibits any abuse of a dominant position within the internal market which may affect trade between EU member states.
ARA has agreed to settle its affair with the commission, marking the first ever settlement in an Article 102 TFEU case.
Since its establishment in 1993, ARA, a non-profit organisation, has been operating Austria’s leading collection and recovery system for both household and commercial packaging waste. Following a complaint by a competitor, the commission conducted an unannounced inspection at ARA’s premises in 2010. In 2013, the commission informed ARA of its preliminary finding that the company may have abused its dominant position in the Austrian markets for the management of packaging waste by foreclosing competitors, inter alia by denying them access to its waste collection infrastructure.
While the commission dropped most of the initial allegations in the course of the six-year-long procedure, it upheld the position that ARA hindered competitors from accessing its collection infrastructure. The commission considered ARA’s infrastructure to be an essential facility, ie a “bottleneck” infrastructure which is difficult to duplicate, but necessary for reaching customers. Without access to this infrastructure competitors would also not be able to receive an authorisation from the ministry in charge of system surveillance.
In its settlement with the commission, ARA agreed to pay a fine and offered to divest the part of the household collection infrastructure that it owns as a structural remedy. The commission took notice of ARA’s ample co-operation when calculating the fine, which was reduced by 30 per cent to €6m.
ARA’s recycling schemes cover all types of packaging and are available to consumers and businesses across the country. In addition, ARA offers the full range of compliance services required by businesses to comply with the Austrian Packaging Ordinance.
The team advising ARA consisted of Hanno Wollmann (partner, Vienna; EU & competition) and Stefanie Stegbauer (counsel, Vienna; EU & competition).
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