WRITTEN QUESTION E-2362/01

by Amalia Sartori (PPE-DE), Stefano Zappalà (PPE-DE),Raffaele Lombardo (PPE-DE), Mario Mauro (PPE-DE), Renato Brunetta (PPE-DE)and Mario Mantovani (PPE-DE) to the Commission

(6 August 2001)

Subject: Recycling of polythene waste

Under Article 48 of Legislative Decree 22/97 Italy has set up a syndicate, with legal force, to recycle polythene waste. Article 48(9) stipulates that any business which generates polythene waste for operational reasons has to hand over its stocks to the syndicate.

The regulations governing Polieco, the syndicate incorporated under the above article, require producers of polythene raw materials and processors of polythene products to pay a contribution in proportion to the volume of goods released on to the market.

From the outset, however, this legislation and Polieco's activities have given rise to serious doubts and great perplexity. Since the law, the syndicate's articles of incorporation, and its regulations constitute an incoherent and virtually unenforceable body of rules, most polythene producers have decided to not to join.

Despite this fact, the Italian Parliament has taken steps in Law 93/01 to introduce a system of penalties both for failure to join the syndicate provided for in Article 48 of Legislative Decree 22/97 and for failure to pay the contributions, adding even more to the totalitarian and monopolistic nature of the polythene waste recycling syndicate.

Recent Community legal practice in environmental matters (Commission decisions C(2001)1006 of 20 April 2001 (DSD case) and C(2001)1611 of 15 June 2001 (Eco-Emballages case)) clearly specifies that waste recycling syndicates cannot constitute a monopoly, companies must be allowed to choose from the different recycling systems, and a fee cannot be charged when no service is provided in return. The fact that these principles do not appear to have been observed in the legislation setting up the Polieco syndicate manifestly infringes the EC Treaty (Articles 29, 30, and 82) and Regulation (EEC) No 259/93(1).

Given that a law contrary to Community law must be repealed with retroactive effect (cf. the judgment handed down by the Court of Justice on 12 July 1973 in Case 70/72), can the Commission say:

1. what steps it will take and what measures it will require the Italian Government to take with a view to amending Article 48 of Legislative Decree 22/97?

2. whether it can ask Italy to open a preliminary investigation into Polieco for abuse of a dominant position?

(1) OJ L 30, 6.2.1993, p. 1.

Joint answerto Written Questions E-2359/01 and E-2362/01given by Mr Monti on behalf of the Commission

(29 October 2001)

The Commission is currently not able, on the basis of the elements at this stage in its possession, to take a position as to the compatibility of the system referred to with Community law. It has however very recently received a complaint in this regard, which it is examining.

In assessing compliance with the Community rules, it is useful to distinguish between the legislative framework on the one hand and the activities of companies within this framework on the other hand.

The Member States have a duty to put in place legislation that is compatible with Community law. As a general principle, the Commission seeks to ensure that the internal market and competition function properly while fully respecting the legislative goal of high levels of environmental protection.

The decisions in the DSD case and in the Eco-Emballages case concerned the agreements set up by and the activities of companies running a recycling system for used sales packaging. The Commission has sought to ensure that the existing operators do not prevent competition. In the markets examined the Commission found that the existing operators should neither practice unjustified exclusivity clauses nor impose other unjustified constraints which hinder the market entry of competitors.

In order to better understand the circumstances referred to by the Honourable Members, the Commission will contact the Italian authorities (including the Italian competition authority) to inform them of the queries raised by the Honourable Members and obtain their preliminary reaction in this regard.