WRITTEN QUESTION E-2253/00

by Wolfgang Ilgenfritz (NI) to the Commission

(7 July 2000)

Subject: Cafés in car parks on Austrian motorways

By virtue of the right of usufruct, Asfinag a motorway operating company is able to collect all the possible revenue from operating the high-grade road network in Austria.

In return it is obliged to operate and maintain the network. Because of the right of usufruct it is entitled to rent land on the motorways to service station tenants, and to conclude contracts with them.

The great majority of the contracts concluded between Asfinag and the tenants have been incorporated in the contracts between the Ministry of Economic Affairs and the service stations, and hence in the corresponding agreements.

These contracts regulate the conditions for establishing and maintaining motorway service stations.

Accordingly, an Austrian restaurant operator (Kärtnerische Bauernimbiß GmbH) was refused permission to erect a café on a motorway lay-by (which only had toilet facilities) on the grounds that it would be a violation of the contracts concluded between Asfinag and the service stations. This is because in order to open a café the operator would require the permission of the nearest service station for which a protective zone of 25 km is incorporated in the contract. This approval has been refused by both service stations in question.

This is a clear infringement of Article 81 of the TEU, which prohibits price agreements between undertakings, and Article 82 which prohibits abuse of a dominant position.

1. What does the Commission intend to do (as soon as possible) in this instance in order to prevent this restriction on free competition?

2. What consequences will this form of restriction on competition have for all parties concerned?

3. How does the Commission intend to compensate restaurant operators who have expressed an interest in setting up service stations and who have suffered a loss of profits because such anti-competition clauses have been included in contracts over a period of years?

Answer given by Mr Monti on behalf of the Commission

(14 September 2000)

The Honourable Member states that in Austria the motorway operating company Asfinag is entitled to rent properties at the motorway to service station tenants. According to the contracts between the Asfinag and the service stations the establishment of a lunch counter requires the agreement of the nearest service station, for which a protected zone is intended. The application of a restaurant operator for the establishment of a lunch counter for a motorway parking lot was refused, since the agreement of the nearest service station was refused. The Honourable Member is of the opinion that these facts infringe Article 81 and 82 (ex Articles 85 and 86) EC Treaty.

The Commission cannot judge finally on the basis of the present information whether European rules of competition are infringed. The grant of a protected zone seems to have a competition-restricting effect. However it would have to be examined whether an effect on intra-Community trade is possible. Furthermore it would be necessary to clarify the role played by the contracts of the ministry of Economic Affairs specified by the Honourable Member. In addition the grant of a protected zone could qualify for an exemption (Article 81 EC Treaty) or could be judged not be an abuse (Article 82 EC Treaty).

The Commission cannot in any case award any claims for damages. Such claims can potentially be made in national courts or other national instances, in accordance with national procedural rules.