Case T-419/03

Altstoff Recycling Austria AG

v

European Commission

(Competition – Agreements, decisions and concerted practices – System for collection and recycling of used packaging in Austria – Agreements for collection and sorting containing exclusivity clauses – Individual exemption decision – Obligations imposed – Principle of proportionality)

Summary of the Judgment

1.      Procedure – Introduction of new pleas during the proceedings – Conditions

(Rules of Procedure of the General Court, Art. 48(2))

2.      Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Network of partner agreements containing territorial exclusivity clauses – Accessibility of the market – Agreements having the cumulative effect of partitioning the market – Specific economic context to be taken into account

(Art. 81(1) EC)

3.      Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Network of agreements for the collection and sorting of used household packaging containing territorial exclusivity clauses – Justification – Potential restrictive effect on the upstream market for household packaging disposal systems – Granting of an individual exemption subject to obligations

(Art. 81(1) and (3) EC; Council Regulation No 17, Art. 8(1))

1.      Under the first subparagraph of Article 48(2) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. In that regard, a plea which amplifies a submission put forward previously, whether directly or by implication, and which is closely connected with that submission, will be declared admissible.

(see para. 44)

2.      When examining the correctness of the Commission’s assessment of the existence of an appreciable restriction of competition within the meaning of Article 81(1) EC, imputable to partner agreements containing territorial exclusivity clauses, the General Court cannot confine itself to looking at the effects of exclusive arrangements, considered in isolation, referring only to the restrictions imposed by those partner agreements.

In order to determine whether those agreements fall within the prohibition contained in Article 81(1) EC, it is appropriate to examine whether, taken together, all the similar agreements entered into in the relevant market and the other features of the economic and legal context of the agreements at issue show that those agreements cumulatively have the effect of denying access to that market for new competitors.

If, on examination, that is found not to be the case, the individual agreements making up the bundle of agreements cannot impair competition within the meaning of Article 81(1) of the Treaty. If, on the other hand, such examination reveals that it is difficult to gain access to the market, it is then necessary to assess the extent to which the agreements at issue contribute to the cumulative effect produced, on the basis that only those agreements which make a significant contribution to any partitioning of the market are prohibited.

(see para. 56)

3.      In the case of a network of partner agreements concluded between, on the one hand, a sectoral recycling undertaking, operating on the market for eliminating used household packaging, and, on the other hand, regional partners (such as undertakings or local authorities) organising the collection, sorting, transport and recycling of the said used household packaging and enjoying, over a period of three to five years, de facto territorial exclusivity, by collection and sorting region, the practical consequence of creating that network of agreements is to close off the market to excluded collectors and sorters and to restrict competition on the supply side of the market for the collection and sorting of household packaging during the lifetime of the agreement.

Since the partner agreements are concluded by the main customer for waste disposal services and cover the whole territory of a Member State, the restriction of competition which such exclusivity entails on the collection and sorting market will have effects on the whole national territory and thus on the whole of the geographically relevant collection and sorting market. Consequently, the excluded suppliers will have difficulties in circumventing the network of agreements and entering and remaining on the national market for the collection and sorting of household waste.

Such agreements may nevertheless be justified by management and efficiency considerations, by the need to ensure reliable collection services, and by a need for planning and investment certainty for the investment required in order to fulfil the collection and sorting agreement. The obligation of exclusivity may therefore constitute a restriction that is indispensable to attaining the objective of rational organisation of collection and sorting activities on the market of the Member State concerned, within the meaning of Article 81(3) EC.

However, the undertaking of a sectoral recycling undertaking to bind itself to only a single collection and/or sorting partner in each collection region could enable it to block its potential competitors’ access to the existing collection and sorting infrastructure in so far as it succeeded in imposing on its partners de facto exclusivity in collection and sorting services. In such circumstances, those potential competitors would have no real, tangible opportunity to circumvent the network of contracts created by the applicant, since, on the market for the collection and sorting of household packaging, there would be no other collection and sorting company which could offer them these services on competitive terms from the start of their activities. Therefore the restriction of competition found on the market for the collection and sorting of household packaging could lead to a restriction of competition on the upstream market, that is to say, the market for household packaging disposal systems. That restriction would immediately limit demand for collection and sorting services on the market for the collection and sorting of household packaging.

Thus the Commission does not commit a manifest error of assessment in taking the view that, in order to avoid the possibility of a sectoral recycling undertaking being able to eliminate competition on the market for household packaging disposal systems, the individual exemption granted pursuant to Article 8(1) of Regulation No 17 should be made conditional on certain obligations.

(see paras 58-59, 63-65, 80)