Schoenherr has advised Altstoff Recycling Austria AG (ARA) in proceedings before the European Commission regarding an alleged infringement of Article 102 of the Treaty on the Functioning of the European Union (TFEU), which 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 — the first settlement ever in an Article 102 TFEU case.
Since its establishment in 1993, ARA — a non-profit organization — has been operating as Austria's leading collection and recovery system for both household and commercial packaging waste. Its recycling schemes cover all types of packaging and are available to consumers and businesses across Austria. In addition, ARA offers the full range of compliance services required by businesses to comply with the Austrian Packaging Ordinance.
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 — 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 authorization 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 cooperation when calculating the fine, which was reduced by 30% to EUR 6 million.
The Vienna-based Schoenherr team advising ARA consisted of Partner Hanno Wollmann and Counsel Stefanie Stegbauer. Commenting on the unprecedented resolution of the case, Wollmann stated: "Naturally, we would have preferred to convince the Commission that even the final allegations against our client were unfounded. However, short of a finding that no infringement has taken place, this decision marks a reasonable and innovative conclusion to a challenging competition case."
