奥地利废物回收组织滥用市场支配地位案亮点解读

反垄断实务评论2018-05-15 15:25:54

[导读:昨日(2016年9月21日),本公众号转载了欧盟委员会(EU Commission,“欧委会”)处罚奥地利废物回收利用组织Altstoff Recycling Austria(“ARA”)的决定。关于欧委会处理本案的方式,有几点值得关注:1、在滥用市场支配地位案中,当事方由于积极配合竞争当局调查而获取减轻处罚,本案属首例。通常情况下,处罚减免仅适用于垄断协议案。然而,在本案中,从承认违规行为到主动提出解决竞争顾虑的方案(当事方提议剥离部分自有废物回收基础设施),ARA由于全方位的配合调查而获取高达30%的罚款减免,实属罕见。欧盟竞争专员玛格丽特·维斯塔格本人也认为这种类似于“和解协议”的处理模式不应局限于卡特尔;2、欧委会将“奥地利境内废物回收系统”认定为“关键设施”(essential facility),原因在于:由于物理空间有限,不可能在奥地利境内重建一个“废物回收系统”,因而占据支配地位的ARA就有义务授权其竞争对手使用该系统;3、ARA虽属奥地利公司,本案相关地域市场也是奥地利,但是却是由欧委会主导本案调查(奥地利竞争当局协助调查,而非由欧委会直接将案件移转给奥地利竞争当局),原因在于欧委会首先接到举报,其对有关竞争顾虑更为熟悉。(本文源自GCR官网。导读系本公众号原创,转载请注明文字出自本公众号。)]

The European Commission has fined an Austrian waste-management company €6 million for foreclosing competition in the domestic market for recycling and waste collection services, but for the first time discounted an abuse of dominance penalty based on cooperation.

The commission said that Altstoff Recycling Austria had abused its dominant position by blocking rivals from providing competing waste collection services between 2008 and 2012, after refusing access to its infrastructure, which it had built up as the dominant operator, the commission said.

Certain retail goods manufacturers in Austria are duty bound to collect waste packaging used in their products, but many companies assign this responsibility to non-profit third parties, such as ARA, which is owned in part by several stakeholders in the drinks manufacturing industry.

“ARA was preventing competitors from accessing essential infrastructure and blocking them from entering the waste management market,” competition commissioner Margrethe Vestager said in a statement.

ARA’s national collection system could not be duplicated, so it was an abuse of its dominant position not to grant access to rival service providers, who were dependent on this infrastructure, the commission said.

A source familiar with the investigation said the commission took on the probe, instead of referring it to Austria’s Federal Competition Authority, because it received the complaint and because it was familiar with the market and competition concerns. In 2003 it scrutinized collection agreements that ARA had notified to the commission.

DG Comp spokesperson Ricardo Cardoso said: “We work in parallel with national competition authorities. In this specific case, the investigation was started and led by the European Commission, which was well placed to deal with the issue.”

Essential facilities

Peter Thyri at Peter Thyri in Vienna said the case is a special one because the key abuse of dominance questions concerned essential facilities and the duplicability of the infrastructure.

“The European Commission argued that the infrastructure was not duplicable as it doesn’t pay to set up anew. This seems like a soft argument,” he said.

While Thyri acknowledged that physical space might limit the ability to duplicate a system, and then the dominant operator must grant access, “if it is possible for a rival to set up a second system, there is no reason for the main system owner to grant access.”

The commission also agreed a structural remedy with ARA, after the company offered to divest its household waste collection infrastructure, to stop it excluding competitors in future. As a result of ARA’s cooperation and its willingness to grant access to its household waste collection infrastructure, the commission reduced the total fine by 30 per cent to €6.01 million.

“It is quite rare to have a discount like this. The fine is moderate but the reduction high. The discount and structural commitment reads like a settlement, but it is a regular case and fine, calculated as per the commission’s fining guidelines,” Thyri said.

“The divestment sounds more significant than it is, as the company is not selling any part of its business.”

The investigation was running on a “low flame” for some time, Thyri said, as changes to the law in September 2013 already obliged ARA to grant access to rivals, which affected DG Comp’s ongoing concerns.

“From the commission’s point of view it is something of a moot case in that respect,” he said.

The fine brings an end to a long-running saga, which saw the company’s behaviour scrutinised by DG Comp and Austria's competition authority. The commission raided ARA in 2010, following complaints from rival operators in the market. It formally began its investigation in 2011 and sent ARA a statement of objections in July 2013.

Austria’s competition authority has also investigated the company both formally and informally over the course of a decade.

Abuse of dominance settlement

Reidlinger Schatzmann partner Axel Reidlinger in Vienna said the decision is essentially a settlement, and thus a “first” for an abuse of dominance case, as such resolutions previously had been only for cartels.

“It is probably a good thing to extend this efficiency tool to dominance cases, as it provides for faster decisions that are enforceable shortly after adoption. The ARA case presented an opportunity to test this procedure for this type of infringement, even if it means that ARA got away with a substantial discount on its fine.”

Vestager said today that there is no reason why such settlements should be limited to cartels. She said DG Comp earlier this year had invited companies under antitrust investigation “to talk to us about getting a lower fine in return for cooperating with our investigation.”

ARA’s admission of a violation allowed the enforcer to take a quicker decision, while its proposal to sell infrastructure “helped us solve the competition problem,” Vestager said. “So we decided to reduce the fine by 30 per cent. I hope that this type of cooperation will be the start of a trend. Because if more companies follow ARA’s lead, we’ll be able to do more to protect consumers.”

The sanction is not that large compared to other abuse fines imposed by DG Comp, Astrid Ablasser-Neuhuber at bpv Hügel in Vienna said, but it is significant because it is punishing anticompetitive activities in a key non-profit sector.

“It is remarkable that such a non-profit organisation has received a fine that goes into the millions,” she said.

“It is a signal that the European Commission is willing to look into sectors that are really important to the economy. It throws a spotlight on companies that manage background logistics, which normal consumers may not otherwise know about.”

The fine is the first imposed by DG Comp since it imposed penalties of €2.93 billion on five trucking manufacturers in July.

Lawyers for ARA declined to comment when contacted.

(News from official website of Global Competition Review, Tom Madge-Wyld)

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