WRITTEN QUESTION E-0095/02

by Renate Sommer (PPE-DE) to the Commission

(28 January 2002)

Subject: Commission Decision of 17 September 2001 on future service agreements with Duales System Deutschland (DSD) proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement

According to the above decision (2001/837/EC)(1), the Commission considers that future service agreements with Duales System Deutschland (DSD) concerning the collection and sorting of used sales packaging will generally be reasonable and economically justified if they have a lifetime of up to three years, but not more.

1. Is the Commission's statement in chapter II, recital 157 to be understood as meaning that service agreements can only last for a maxiumum of three years, or are longer service agreements also legally admissible?

2. Is the Commission aware that a service agreement lasting only three years makes it impossible to economically exploit facilities (containers, vehicles, sorting equipment, recycling technology etc.) or profit from tax depreciation on them?

3. Do short, three-year service agreements not mean that collecting companies which already have existing plants, as they are already DSD system contractors, are placed at an advantage in the procurement process?

4. Would it therefore not be more in keeping with the Commission's goal of promoting competition in the waste disposal market if service agreements with a duration linked to tax depreciation schedules were admissable?

(1) OJ L 319, 4.12.2001, p. 1.

Answer given by Mr Monti on behalf of the Commission

(15 March 2002)

1. The mentioned duration of up to three years does not relate to service agreements which are subject of the exemption decision, but to future service agreements. For this reason it is a general line of orientation. The concrete assessment under competition rules of the duration of future service agreements can only be done under consideration of all legal and economic circumstances of the individual case. In this context, the future tender conditions will also play a role. As an example, it is of importance for the assessment whether there will be separate agreements for the different materials and for collection and sorting and which size the collection districts will have.

2. When fixing the duration of the exemption, the guarantee of a sufficient amortisation under economic terms of the investments is a substantial element. The profitability of an investment depends on many factors inside and outside of the company. As an example, it must be examined whether the collection, transport and sorting tools are only used to provide the services foreseen in the service agreement with DSD or also otherwise.

3. In the framework of the future tender procedure for the service agreements it will be decisive, which company fulfils best the tender conditions. The competitiveness of a recycling company is influenced by many factors, as for example the capability of innovation, the use of technology and the organisation of the company. For this reason, it cannot be assumed that a certain duration of the agreement places an advantage on such companies which are already contractual partners of DSD.

4. When fixing the duration of the exemption, different elements are of importance. The amount of the restriction of competition caused by an exclusivity clause and a long duration of the agreement has to be taken into account. In this light, the isolated examination of elements of depreciation is not a sufficient standard to assess the duration of agreements in line with competition rules.