Refuge collection an essential facility, says European Commission

The European Commission has fined a waste management company EUR6 million for abuse of a dominant position in restricting competition in recycling and waste collection services after refusing access to its infrastructure.

The Commission announced in a press release on 20 September that Altstoff Recycling Austria (ARA) had prevented rivals from accessing its network which the authority considered was an essential facility.

The decision is noteworthy in a number of respects.  Firstly, although the facts of the case were confined to Austria the Commission dealt with the case itself because it was familiar with the market and competition issues.

Secondly, the classification of ARA’s infrastructure as an essential facility is based on the Commission’s conclusion that the system was not duplicable because it was not economic to set up a rival system.  The full decision when available may shed light on the Commission’s reasoning in this respect.

Thirdly, the case is not a commitments decision under Article 9 of Regulation 1/2003 which has been a popular route for the Commission to close abuse of dominance investigations without concluding that there has been an infringement.  However, it is an example of a pragmatic solution where ARA agreed to a structural remedy to divest part of its household collection infrastructure.

Finally, the Commission reduced ARA’s fine by 30 per cent due to its cooperation with the investigation and structural concession.  The fine is still sizeable for a not-for-profit company and shows that the Commission is serious about enforcing competition law in markets that are not directly consumer facing but are nevertheless important to the economy.

Commission press release IP/16/3116.