# C_2016432EN.01000401.xml

| 23.11.2016 | EN | Official Journal of the European Union | C 432/4 |
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23.11.2016

EN

Official Journal of the European Union

C 432/4

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Final Report of the Hearing Officer (1)

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ARA Foreclosure

(AT.39759)

(2016/C 432/04)

| 1. | The present report concerns a draft antitrust fining decision to be adopted under Article 7 and Article 23(2) of Regulation (EC) No 1/2003 (2) (the ‘Draft Decision’). |
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1.

The present report concerns a draft antitrust fining decision to be adopted under Article 7 and Article 23(2) of Regulation (EC) No 1/2003 (2) (the ‘Draft Decision’).

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| 2. | According to the Draft Decision, Altstoff Recycling Austria Aktiengesellschaft (‘ARA’) infringed Article 102 TFEU and Article 54 of the EEA Agreement by foreclosing the market for the exemption of household packaging waste in Austria. The infringement is stated to consist in a refusal to give access to an indispensable infrastructure covering the territory of Austria. |
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2.

According to the Draft Decision, Altstoff Recycling Austria Aktiengesellschaft (‘ARA’) infringed Article 102 TFEU and Article 54 of the EEA Agreement by foreclosing the market for the exemption of household packaging waste in Austria. The infringement is stated to consist in a refusal to give access to an indispensable infrastructure covering the territory of Austria.

| 3. | Case AT.39759 started following submissions received by the Commission in late 2009 and early 2010. In November 2010, the Commission, with the support of the Austrian Federal Competition Authority, carried out unannounced inspections at the premises of, among other undertakings, ARA. |
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3.

Case AT.39759 started following submissions received by the Commission in late 2009 and early 2010. In November 2010, the Commission, with the support of the Austrian Federal Competition Authority, carried out unannounced inspections at the premises of, among other undertakings, ARA.

| 4. | On 15 July 2011, the Commission initiated proceedings within the meaning of Article 2(1) of Regulation (EC) No 773/2004 (3) in respect of suspected abuse of ARA’s dominant position in the markets for the exemption of household packaging waste and for commercial packaging waste in Austria. Throughout its investigation, the Commission sent several requests for information to ARA and others. |
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4.

On 15 July 2011, the Commission initiated proceedings within the meaning of Article 2(1) of Regulation (EC) No 773/2004 (3) in respect of suspected abuse of ARA’s dominant position in the markets for the exemption of household packaging waste and for commercial packaging waste in Austria. Throughout its investigation, the Commission sent several requests for information to ARA and others.

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| 5. | The Directorate-General for Competition (‘DG Competition’) organised state-of-play meetings with ARA on 19 October 2011 and 7 May 2013, the latter meeting being conducted by telephone conference call. |
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5.

The Directorate-General for Competition (‘DG Competition’) organised state-of-play meetings with ARA on 19 October 2011 and 7 May 2013, the latter meeting being conducted by telephone conference call.

| 6. | On 17 July 2013, the Commission adopted a statement of objections in Case AT.39759 (the ‘SO’). The SO was notified to ARA on 19 July 2013. In the SO, the Commission came to the preliminary conclusion that ARA was abusing its dominant position on the Austrian exemption market for household packaging and on the Austrian exemption market for commercial packaging. According to the SO’s preliminary assessment, several types of conduct pursued by ARA all served the purpose of preventing competitors from entering the exemption market for household packaging waste and foreclosed competitors from a part of the market for the exemption of commercial packaging waste. |
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6.

On 17 July 2013, the Commission adopted a statement of objections in Case AT.39759 (the ‘SO’). The SO was notified to ARA on 19 July 2013. In the SO, the Commission came to the preliminary conclusion that ARA was abusing its dominant position on the Austrian exemption market for household packaging and on the Austrian exemption market for commercial packaging. According to the SO’s preliminary assessment, several types of conduct pursued by ARA all served the purpose of preventing competitors from entering the exemption market for household packaging waste and foreclosed competitors from a part of the market for the exemption of commercial packaging waste.

| 7. | DG Competition provided ARA with the accessible part of the Commission’s investigation file on 26 July 2013. |
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7.

DG Competition provided ARA with the accessible part of the Commission’s investigation file on 26 July 2013.

| 8. | ARA responded in writing to the SO on 18 October 2013, within the applicable period of 12 weeks set in the letter accompanying the SO. In this response, ARA requested to be heard orally. |
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8.

ARA responded in writing to the SO on 18 October 2013, within the applicable period of 12 weeks set in the letter accompanying the SO. In this response, ARA requested to be heard orally.

| 9. | The oral hearing took place on 26 November 2013. Three third persons expressed their views at the oral hearing at the invitation of the Commission pursuant to Article 13(3) of Regulation (EC) No 773/2004 and Article 12(1) of Decision 2011/695/EU. |
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9.

The oral hearing took place on 26 November 2013. Three third persons expressed their views at the oral hearing at the invitation of the Commission pursuant to Article 13(3) of Regulation (EC) No 773/2004 and Article 12(1) of Decision 2011/695/EU.

| 10. | During the oral hearing, ARA requested access to a letter from an Austrian ministry that one of these third persons mentioned. DG Competition subsequently obtained a copy of this letter and shared it with ARA on 12 December 2013. On 20 January 2014, ARA submitted its views on this document as well as on the issues discussed in relation to it at the oral hearing. |
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10.

During the oral hearing, ARA requested access to a letter from an Austrian ministry that one of these third persons mentioned. DG Competition subsequently obtained a copy of this letter and shared it with ARA on 12 December 2013. On 20 January 2014, ARA submitted its views on this document as well as on the issues discussed in relation to it at the oral hearing.

| 11. | On 10 September 2014, the Commission sent ARA a letter of facts, to which ARA replied on 26 September 2014. The Commission sent ARA a second letter of facts on 15 February 2016 and gave ARA the opportunity to have access to the evidence added to the investigation file since the SO. |
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11.

On 10 September 2014, the Commission sent ARA a letter of facts, to which ARA replied on 26 September 2014. The Commission sent ARA a second letter of facts on 15 February 2016 and gave ARA the opportunity to have access to the evidence added to the investigation file since the SO.

| 12. | In late 2015, ARA informally expressed an interest in a procedural approach to Case AT.39759 that would be characterised by heightened cooperation on ARA’s part in respect of the adoption of an infringement decision imposing fines pursuant to Articles 7 and 23 of Regulation (EC) No 1/2003. Against this backdrop, ARA requested and DG Competition granted several extensions to the period initially set for responding to the second letter of facts. |
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12.

In late 2015, ARA informally expressed an interest in a procedural approach to Case AT.39759 that would be characterised by heightened cooperation on ARA’s part in respect of the adoption of an infringement decision imposing fines pursuant to Articles 7 and 23 of Regulation (EC) No 1/2003. Against this backdrop, ARA requested and DG Competition granted several extensions to the period initially set for responding to the second letter of facts.

| 13. | Instead of a substantial reply to the second letter of facts, ARA submitted on 21 July 2016 a formal offer to cooperate with the Commission (the ‘Cooperation Submission’). |
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13.

Instead of a substantial reply to the second letter of facts, ARA submitted on 21 July 2016 a formal offer to cooperate with the Commission (the ‘Cooperation Submission’).

| 14. | The Cooperation Submission contains, among other things, an acknowledgement of ARA’s liability for the infringement of refusing to give access to potential competitors to the household collection infrastructure in Austria, a proposed divestiture of ARA’s part of the Austrian household collection infrastructure owned by ARA, acknowledged as necessary to avoid a repetition of this infringement, and ARA’s agreement to notification of the decision in English. |
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14.

The Cooperation Submission contains, among other things, an acknowledgement of ARA’s liability for the infringement of refusing to give access to potential competitors to the household collection infrastructure in Austria, a proposed divestiture of ARA’s part of the Austrian household collection infrastructure owned by ARA, acknowledged as necessary to avoid a repetition of this infringement, and ARA’s agreement to notification of the decision in English.

| 15. | In the Cooperation Submission ARA confirms: having received the SO and the two letters of facts; having had full access to the Commission’s file at the time of the SO; and having been given sufficient opportunity to have access to the evidence supporting the Commission’s objections and to make its views known to the Commission. |
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15.

In the Cooperation Submission ARA confirms: having received the SO and the two letters of facts; having had full access to the Commission’s file at the time of the SO; and having been given sufficient opportunity to have access to the evidence supporting the Commission’s objections and to make its views known to the Commission.

| 16. | ARA made its Cooperation Submission conditional upon the imposition of a maximum fine that it anticipated would be imposed by the Commission and which would not exceed the amount of EUR 6,1 million. |
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16.

ARA made its Cooperation Submission conditional upon the imposition of a maximum fine that it anticipated would be imposed by the Commission and which would not exceed the amount of EUR 6,1 million.

| 17. | The infringement found and the remedies imposed in the Draft Decision correspond to those acknowledged and proposed in the Cooperation Submission. On account of its cooperation, the amount of the fine to be imposed on ARA is reduced by 30 %. |
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17.

The infringement found and the remedies imposed in the Draft Decision correspond to those acknowledged and proposed in the Cooperation Submission. On account of its cooperation, the amount of the fine to be imposed on ARA is reduced by 30 %.

| 18. | In contrast to the scope of the suspected infringement as set out in the SO, the Draft Decision does not find that ARA infringed Article 102 TFEU in respect of commercial packaging waste. In relation to the infringement for which ARA is found liable (which concerns household packaging waste), the Draft Decision holds ARA liable for a shorter period than that set out in the SO. |
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18.

In contrast to the scope of the suspected infringement as set out in the SO, the Draft Decision does not find that ARA infringed Article 102 TFEU in respect of commercial packaging waste. In relation to the infringement for which ARA is found liable (which concerns household packaging waste), the Draft Decision holds ARA liable for a shorter period than that set out in the SO.

| 19. | In accordance with Article 16 of Decision 2011/695/EU, I have examined whether the Draft Decision deals only with objections in respect of which ARA has been afforded the opportunity of making known its views. I conclude that it does. |
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19.

In accordance with Article 16 of Decision 2011/695/EU, I have examined whether the Draft Decision deals only with objections in respect of which ARA has been afforded the opportunity of making known its views. I conclude that it does.

| 20. | Overall, I consider that the effective exercise of procedural rights has been respected in this case. |
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20.

Overall, I consider that the effective exercise of procedural rights has been respected in this case.

Brussels, 5 August 2016.

Wouter WILS

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(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29).

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(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

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(3)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

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