WRITTEN QUESTION P-0256/99

by Manuel Porto (PPE) to the Commission

(5 February 1999)

Subject: Breach of competition law with regard to co-incineration in Portugal

Through a protocol of May 1987 the Portuguese Government granted the private Scoreco consortium a de facto monopoly on the transport, storage, co-incineration, export and landfill of hazardous industrial waste, without conducting an open tender procedure.

That decision predated the publication of the Resolution of the Portuguese Council of Ministers on policy in this area, thereby damaging the prospects of other firms with a potential interest.

The Chairman of the above undertaking is also a member of the executive board of the EGF, a public-sector undertaking with a dominant position in the Portuguese waste management market which enjoys privileged access to all the relevant information on the subject.

These circumstances, together with other equally striking details such as the fact that the application for a licence for co-incineration units was submitted before the decree-law regulating such activities was published and before the end of the public debate on an environmental impact assessment, which is mandatory under European law, raise the question of whether European law on competition policy has been breached.

Can the Commission answer the following:

1. Do the provisions of European law on competition policy apply to the industrial waste treatment sector?

2. If so, has the Portuguese Government complied with this legislation, particularly as regards ensuring equal opportunities for all potentially interested parties submitting business-based solutions to this serious environmental problem?

Answer given by Mr Van Miert on behalf of the Commission

(15 March 1999)

There should be no doubt concerning the applicability of the Community competition rules (Articles 85 to 94 of the EC Treaty) in the sector of treatment of industrial waste. Indeed, the offer of services, for payment, is, as a rule, an economic activity under these provisions and thus the undertakings as well as the public authorities must respect the rules intended to ensure that competition within the common market is not prevented, restricted or distorted.

These rules prohibit anti-competitive agreements between undertakings and abusive exploitation of market power where such an agreement or behaviour could have appreciable effects on trade between Member States. They also ban state regulation if the state thereby makes undertakings adopt anti-competitive practices that would affect trade between Member States or reinforce the effects of such practices.

The information contained in the Honourable Member's question does not reveal, however, the existence of any such anti-competitive practices by the Scoreco consortium which allegedly has a de facto monopoly in the treatment of hazardous industrial waste in Portugal. The information available is not sufficient for the Commission to conclude whether or not the Community competition rules have been breached.

The Commission is not aware of any irregularities in the tendering procedure to which the Honourable Member refers. It is impossible to judge this matter on the basis of the data supplied by the Honourable Member.

The Commission will take the necessary steps to determine whether this contract was awarded in conformity with Community law on public procurement. In this connection it will also examine any additional information the Honourable Member may provide.