# CE2004084EN.01047601.xml

| 3.4.2004 | EN | Official Journal of the European Union | CE 84/476 |
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3.4.2004

EN

Official Journal of the European Union

CE 84/476

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(2004/C 84 E/0551)

WRITTEN QUESTION E-1731/03

by Freddy Blak (GUE/NGL) to the Commission

(23 May 2003)

Subject:   Infringement by Denmark of Articles 82 and 86 of the Treaty

Subject:

With the establishment of Dansk Retursystem A/S (DRS), Denmark is in breach of Articles 82 and 86 of the Treaty as a result of Carlsberg's dominant position on the Danish market combined with Carlsberg's dominant influence over DRS A/S. DRS A/S is a private company which has obtained sole and exclusive right to operate the deposit and return system in Denmark. Carlsberg, however, controls DRS completely as it has the majority shareholding in DRS Holding and the holding company owns 85 % of the shares in DRS A/S. Furthermore, Carlsberg holds most of the seats on the boards of both DRS Holding and DRS A/S (see previous question E-3828/02 (1)). DRS A/S has sole and exclusive right to operate the deposit and return system with which all companies marketing beer and soft drinks must be registered. The exclusive right comprises the collection of disposable packaging but not collection of reusable packaging which can be organised by the bottling plants themselves. This means that there is no competition on the Danish market for the collection of disposable packaging, which is a breach of Article 82 in that the company concerned, simply by exercising its exclusive right, cannot avoid abusing its dominant position or the exclusive right is likely to create a situation in which the company is induced to commit abuse. By giving sole and exclusive right to DRS A/S, which is effectively controlled by Carlsberg, DRS A/S is placed in a conflict of interests, ‘inter alia’ by giving board members access to sensitive business information about their competitors on the Danish beer and soft drinks market.

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Will the Commission intervene in response to this breach of Articles 82 and 86 of the Treaty?

Answer given by Mr Monti on behalf of the Commission

(7 July 2003)

(7 July 2003)

The Honourable Member refers to the establishment of Dansk Retursystem A/S (DRS) which has obtained the exclusive right to operate the deposit and return system in Denmark.

According to the case law of the European Court of Justice merely creating a dominant position is not, in itself, incompatible with Article 82 of the EC Treaty. There can be a breach of the prohibitions contained in Articles 86 and 82 of the EC Treaty if the undertaking in question, by exercising the exclusive rights granted to it, is led to abuse its dominant position or when such rights are liable to create a situation in which that undertaking is led to commit such abuses (cases C-l63/96, Raso; C-209/98, FFAD).

When the Danish legislation on the deposit and return system was drafted, the Commission was in contact with the Danish competition authority. Due to its intervention, modifications of the draft legislation were made. It is not envisaged to start an infringement procedure against Denmark based on the violation of Community competition rules by granting an exclusive right to DRS. The fact that Carlsberg controls DRS is as such not sufficient to demonstrate an abuse of DRS. Possible conflicts of interest raised by the Honourable Member can be avoided if there are sufficient firewalls to make sure that Carlsberg does not get access to sensitive business information held by the auditing company or DRS.

As already mentioned in the reply to the Written Question E-3828/02 of the Honourable Member, the Commission is monitoring the practical operation of the system. As far as the practical operation or the scope of the system raise competition issues, the Commission continues to co-operate with the Danish competition authority.

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(1)  OJ C 268 E, 7.11.2003, p. 52.

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