2001/663/EC: Commission Decision of 15 June 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (COMP/34.950 — Eco-Emballages) (Text with EEA relevance) (notified under document number C(2001) 1611)
Date: 2001-06-15
Institutions: European Commission
Subjects: France, application of EU law, company law, packaging, public limited company, waste management

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 15 June 2001

relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement

(COMP/34.950 — Eco-Emballages)

(notified under document number C(2001) 1611)

(Only the French version is authentic)

(Text with EEA relevance)

(2001/663/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to the Agreement on the European Economic
Area,

Having regard to Council Regulation No 17 of 6 February
1962, first Regulation implementing Articles 85 and 86 of the
Treaty (1), as last amended by Regulation (EC) No 1216/
1999 (2), and in particular Article 2 thereof,

Having regard to the application for negative clearance and the
notification for exemption, submitted pursuant to Articles 2
and 4 of Regulation No 17 on 17 December 1993,

Having regard to the summary of the application and noti-
fication published (3) pursuant to Article 19(3) of Regulation
No 17,

Decision covers the notified contracts as they currently
stand, i.e. incorporating the amendments made during
the proceeding and effected by Eco-Emballages at the
Commission's request, as explained below.

B. REGULATORY FRAMEWORK IN FRANCE

(2)

‘the Decree’)

Decree No 92-377 (hereinafter
imple-
menting, with regard to packaging waste, Law No 75-
633 of 15 July 1975 on waste disposal and recovery, as
amended, was adopted on 1 April 1992 and has been in
force since 1 January 1993. Member States also have
obligations in this matter arising from European Parlia-
ment and Council Directive 94/62/EC of 20 December
1994 on packaging and packaging waste (4).

After consulting the Advisory Committee on Restrictive Prac-
tices and Dominant Positions,

(3)

Whereas:

A. INTRODUCTION

(1)

Eco-Emballages SA (hereinafter ‘Eco-Emballages’) orga-
nises on French territory a system of selective collection
and recovery of household packaging waste. The system
is designed to meet the requirements laid down by the
French Packaging Decree. The notification relates to the
agreements governing the system's operation. This

(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ C 227, 9.8.2000, p. 6.

Article 1 of the Decree stipulates that it applies to all
packaging held by households as end-users. According
to the definitions in Article 2, a ‘producer’ means anyone
who packages products or has products packaged with a
view to placing them on the market and ‘packaging’
means any form of container or the like intended to
contain a product and to facilitate its transport or
presentation for sale.

(4)

Article 4 of the Decree stipulates that any producer or
importer whose products are marketed in packaging or,
if the producer or the importer cannot be identified, the
person first responsible for placing the products on the
market
is required ‘to contribute to or organise the
disposal of all of its packaging waste’ (hereinafter, the

(4) OJ L 365, 31.12.1994, p. 10.

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includes any person covered by this
term ‘producer’
requirement). It also stipulates that the producer may
either apply to a body or firm (hereinafter a ‘body’)
when referring to a collective system) approved by the
authorities to carry out its disposal operations or recover
the packaging itself by establishing a deposit system or
organising collection points specifically for that purpose
(individual system).

trade organisations representing the distributive sector,
two of trade organisations representing waste-disposal
and material-recovery firms,
three of environmental
protection associations, and three of consumer organ-
isations. The committee is consulted among other things
on applications for approval and is informed of the
activity reports of approved bodies.

(5)

(6)

(7)

(8)

The second paragraph of Article 4 of the Decree requires
producers belonging to a body to identify their products.
According to that provision, ‘it shall identify the pack-
aging the handling of which it has entrusted to a body
[...] under the arrangements they determine as provided
for in Article 5 below’. Article 5 stipulates that persons
[...] who have recourse, for the disposal of their pack-
aging waste, to the services of a body [...] shall enter into
a contract stipulating in particular the nature of the
identification of the packaging, the estimated volume of
waste to be taken back each year [...]. Article 10
provides that producers that choose to establish a
deposit system must show this clearly on their pack-
aging and that producers organising specifically desig-
nated packaging collection points must have
the
arrangements for monitoring their system approved by
the competent authorities. On 21 December 1999 the
obligation to show the establishment of an individual
system on the packaging was deleted from Article 10 of
the Decree.

to carry out

such operations

Article 6 of the Decree provides that bodies may obtain
approval
from the
competent ministers (in the first instance, the Ministry of
the Environment). Approval is valid for a maximum of
six years. The body in question should negotiate agree-
ments with producers and with waste
collection/
recovery firms and local authorities. An application for
approval must be accompanied by specifications indi-
cating the method of calculating the financial contribu-
tion required from producers to allow the body to
supply packaging with zero or positive value sorted by
type of material. Likewise, the specifications must indi-
cate the method of calculating the payments which the
approved body makes to ensure that local authorities are
reimbursed the extra costs which they may incur in
sorting waste.

(9) When a body submits a set of specifications relating to
its system for approval by the competent ministers, the
authorities check compliance with a number of predeter-
mined general criteria and may still impose conditions
over and above those for the approval application or
decide not to take up the proposals put forward in the
application.

(10)

Price scales, both upstream (i.e. contributions by produ-
cers belonging to the selective collection and recovery
systems) and downstream (i.e. financial support for local
authorities), are currently determined in identical fashion
by the authorities for approved bodies performing the
same role. The most recent proposal for the price scales
of each body is based on one and the same independent
study (by the market research institute Sofres) of the
costs of selective collection of household waste and
system management. To the costs thus estimated for
each material, but without any differentiation by local
authority, are added the body's structural costs. The
French authorities argue that different price scales down-
stream would prompt local authorities to move towards
the highest prices, and this might result in higher prices
upstream and hence higher consumer prices. Conversely,
the existence of different scales upstream would prompt
producers to deal with bodies offering the lowest prices.
The French authorities thus claim that the existence of
system's
different
economic and financial balance, proper implementation
and sustainability. They argue that the existence of two
or more approved bodies performing the same activities
thus leads to uniform price scales, although this does
not rule out the possibility of differences regarding, for
example, the quality of service and back-up provided to
local authorities or the possibility of outbidding as
bodies propose more efficient services or innovative
solutions when approvals are being renegotiated.

scales would be harmful

to a

Under Article 8 of the Decree, the approved body is
required each year to submit to certain authorities an
activity report and the results of its recovery and salvage
operations.

C. THE NOTIFYING PARTY AND ITS ACTIVITIES

The Order of 23 July 1992 on the approval provided for
by the Decree set up an advisory approval committee
comprising 33 members: five representatives of central
government, six of the local authorities, seven of trade
organisations representing industries producing pack-
aged goods, five of trade organisations representing the
two of
packaging and packaging-materials industries,

(11)

Eco-Emballages is a private limited-liability company set
up in 1992 and located in Levallois-Perret, France. Its
shareholders are the Compagnie pour le financement
d'Eco-Emballages (Ecopar), which is made up of produ-
cers and their trade associations (70 % of the capital), the
five sectoral networks concerned, i.e. steel, aluminium,
paperboard/paper, plastic and glass (each with 4 % of
the capital), distributive firms and their trade bodies and,
its directors.
as required by its articles of association,

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(12)

It was approved by the competent ministers to take
charge of packaging waste in respect of which producers
or importers of products consumed or used by house-
holds have entered into a contract with it. The first
approval was issued on 12 November 1992, to run for
six years from 1 January 1993. It was renewed on 30
August 1996 for a further six years from 1 July 1996
and again on 11 June 1999 for six years from 1 January
1999.

(13)

It has concluded and concludes contracts with:

— the company Pro Europe for the use of the Green
Dot logo and trademark (hereinafter ‘the Green Dot
mark’),

— producers

that do not wish to organise waste
disposal themselves. By joining Eco-Emballages, the
producer meets its obligation under the Decree. Eco-
Emballages is financed out of contributions paid by
the producers which participate in the system,

— local authorities,

i.e.

individual municipalities or
groupings of them, which are required under French
law to dispose of household waste. It is the local
authorities, either on their own or with the help of a
subcontractor, which look after refuse collection. By
they
concluding a contract with Eco-Emballages,
receive financial support for that task from it,

— industrial firms, referred to as ‘sectoral undertakings’,
which undertake to process the recovered raw mate-
rials. Once sorted, domestic packaging is passed on
to the take-back firm(s) for recovery. Eco-Emballages
regularly receives reports from the local authorities
indicating that recovery has actually taken place.

It has also drawn up a standard ‘operational take-back’
contract, to be concluded between designated take-back
firms and local authorities, and a standard ‘research and
development’ contract.

(14)

In 1997 Eco-Emballages had a net
turnover of
FRF 565,6 million (from producer contributions) and,
after it drew on provisions to cover future costs, its total
operating income was FRF 1 463 million. In 1998 net
turnover was FRF 504,5 million and total operating
income FRF 790,5 million. In 1999 the corresponding
figures were FRF 600 million and FRF 1 042 million.
The firm generated turnover of FRF 1 120 million in
2000.

D. THE NOTIFIED AGREEMENTS

(15)

The notification covers the articles of association of
Eco-Emballages, the contract governing use of the Green
Dot mark, the standard producer contract, the standard
local authority contract,
the
standard operational take-back contract (annexed to the
sectoral contracts) and the standard research and devel-
opment contract.

the sectoral contracts,

(16) During the proceeding Eco-Emballages updated or
replaced some of the notified contracts. With its agree-
ment, this Decision relates to the notified contracts as
they currently stand.

1. Articles of association

(17) According to its articles of association, the purpose of
inter alia to organise systems for
Eco-Emballages is,
waste disposal and the recovery of materials and, more
particularly, to take charge of the packaging of firms
subject to the obligations arising out of the abovemen-
tioned Law No 75-633 and the decrees implementing it.

(18)

(19)

(20)

2. Contract governing use of the Green Dot mark

The Green Dot mark is used in the Eco-Emballages
system to identify the products of producers which
belong to the system, as required by the Decree.

Since 10 December 1996 it has been the contract
concluded by Eco-Emballages with the Packaging
Recovery Organisation Europe or Pro Europe SPRL (Pro
Europe) that grants the former its exclusive principal
licence to use the Green Dot mark and to grant subli-
cences to members in France (1). Eco-Emballages is,
moreover, required to inform its members that use of
the Green Dot mark outside France is subject to author-
isation from the competent party.

Since 4 December 1998 Eco-Emballages has also been
required by a third supplementary agreement concluded
with Pro Europe to grant sublicences to regional systems
and/or systems dealing with specific materials in France,
provided that the latter comply with the requirements
on the collection and recovery of packaging waste
arising from Directive 94/62/EC and with certain prede-
termined conditions. It has in fact granted the company
Adelphe SA (hereinafter ‘Adelphe’) a non-exclusive subli-
cence for the use of its Green Dot system on French
territory up to 31 December 2002. Adelphe is required
to pay to Eco-Emballages an amount corresponding to
its share of the costs claimed by Pro Europe.

(1) The licence was formerly granted to Eco-Emballages by a contract
with Der Grüne Punkt-Duales System Deutschland AG (DSD).

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3. Producer contracts

(21)

(22)

either

Eco-Emballages offers producers
standard
membership contract or a simplified contract designed
for small
individual contributors or for syndicates or
federations of contributors with an annual pre-tax turn-
over on packaged products intended for households on
French territory of less than FRF 2 million.

a

The producer acquires the right to affix the Green Dot
is actually an obligation
mark to its packaging (it
in
because the products covered by the system must,
accordance with the
so identified).
According to Article 3(1) of the standard contract, this
right
the products manufactured,
imported, marketed and/or placed on the market by the
co-contractor. In return for payment of the contribution,
Eco-Emballages relieves the producer of its packaging
waste disposal, sorting and recovery obligations.

contract, be

extends

to all

(23)

It is up to the producer to complete a posteriori a
declaration on the basis of which its contribution is
calculated. This has to include packaging bearing the
Green Dot mark which it places on the market
in
France.

(24)

(25)

The producer's
financial contribution is determined
according to a price scale. Since January 1999 the price
scale has been composed of a flat-rate amount and a
contribution determined according to weight and speci-
fied for each material. The weight-based contribution
takes account of the financial needs specific to each
material and incorporates a portion for non-attributable
costs.

The contract stipulates that the price scale will change
over the contract period. Eco-Emballages may decide to
adjust the amount of the contribution, although not
more than once a year and subject to the agreement of
the price committee (made up of shareholders) and the
price management committee (comprising representa-
tives of producers, sectoral undertakings and Eco-Embal-
lages) set up in the context of approval. These proposals
are then submitted to the board of Eco-Emballages and
finally to the authorities for approval. Under the terms
of the 1996 and 1999 approvals, the adjustment is
carried out according to the extent by which Eco-Embal-
increase and
lages' activities with local authorities

according to an assessment of the financial needs for
each material, as defined by Article 6 of the Decree and
based on economic,
technical and ecological assess-
ments, as well as with a view to reducing the quantities
(weight and volume) of packaging waste at source. The
price scale must not ‘introduce unjustified discrimination
between packaging materials’. The funds
raised by
applying the price scale are intended to ensure that the
system remains in balance economically and financially
and does not give rise to operating surpluses at the end
of the financial year. All of the financial support paid for
each material, including the portion for non-attributable
costs, should be covered by the contributions received
for the material in question. The funds raised must also
increase in the
ensure a progressive and significant
extent of collections, without any threshold being
imposed and with medium-term transparency for produ-
cers.

(26)

The specifications proposed by Eco-Emballages and
annexed to the 1999 renewed approval also contain the
following ‘principles’: The price scale for producers is
it is calculated
common to all approved companies:
according to those companies' overall share. Financial
transfers may be organised between approved compa-
nies to take account of the specific characteristics of
their share in terms of contributing materials. The
activity forecasts of approved companies take these
financial transfers into account, with the objective of
achieving a zero balance for the transfers to be carried
out in each financial year (1).

(27) According to the standard contract originally notified,
membership contracts ran for three years and were
renewable by tacit agreement for further periods of one
termination was submitted six
year unless notice of
months before the expiry of one of the one-year periods
of tacit renewal. Approximately 75 % of the contracts in
force at the end of 1998, accounting for some 94 % of
contributions, were of
the 1996
this
renewed approval, the contract term was increased to six
years, renewable by tacit agreement for three years. Early
termination is possible under Article 13 of the standard
contract in the event of default by one of the parties.

type. Under

(28)

(29)

The July 2000 version stipulates that interest on arrears
— at the legal interest rate plus two percentage points
— is to be applied for the late payment of contributions
to any members joining after 31 December 1993 ‘so as
to avoid causing discrimination between members’.

Lastly, the producer contract stipulates that Eco-Embal-
lages must guarantee total confidentiality with regard to
all financial or commercial information communicated
to it by producers or to which it might become privy
during the contract period.

(1) According to Eco-Emballages, such transfers are as of now non-
existent. If there were any, they served as the consideration for the
take-back service. In effect, only a few of Adelphe's obligations rela-
ting to materials other than glass were in the past transferred to
Eco-Emballages and it received corresponding financial compensa-
tion.

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4. Local authority contracts

(30)

The contributions paid by producers are redistributed to
local authorities on the basis of several types of contract.
While in the past Eco-Emballages has entered into
‘single-material’,
‘relay’ and ‘pilot-site’ contracts, it now
concludes only ‘long-term programme’ (programme de
durée) contracts for establishing multi-material collec-
tion. The standard contract states that its purpose is ‘to
regulate the relationship between Eco-Emballages and
the local authority, which undertakes to develop a
project for the selective collection of the five materials’.

(31) Under the terms of

its approval, Eco-Emballages is
required to enter into a contract with any local authority
which so requests, to the extent of the quantities of
packaging equivalent to those for which producers have
themselves entered into a contract with it. The contract
must comply with the requirements of the General Local
Authorities Code (legislative part) and the Municipalities
Code (regulatory part).

(32)

The long-term programme contract, in its version of 8
July 1994,
is concluded for a six-year period. Under
Article 12 of the contract, Eco-Emballages must, on each
occasion its approval is renewed, offer local authorities a
supplementary agreement renewing the contract for a
period to be determined between the parties but which
may not exceed the duration of
the new approval.
According to Eco-Emballages, the six-year period meets
in view of the
the wishes of local authorities, which,
substantial
seek a degree of
durability in their
relationship with Eco-Emballages.
Termination is possible under Article 14 of the contract
in the event of default by one of the parties.

investment

involved,

(33) Under a long-term programme contract, Eco-Emballages
offers local authorities the guarantee that household
packaging waste collected and appropriately sorted by
them (i.e.
in accordance with minimum technical
requirements (the MTR) will be taken back from them
for the purposes of recovery. Local authorities remain
free not to opt for the guarantee with regard to some or
all materials.

(34) When an authority does opt to accept the take-back
guarantee, the contract stipulates that, for the contract
period, it must supply the entire tonnage of materials
collected and sorted in accordance with the MTR to the
designated take-back firm(s). According to Eco-Embal-
lages, this requirement was adopted to allow its support
to be calculated and to permit verification that all pack-
aging had indeed been recycled.

(35) Nevertheless, in cases where the local authority identifies
a new and innovative means of recovery during the
contract period, an exception may be made to the prin-
ciple of
take-back by the designated take-back firm.
Application of such an exception has to be approved by
the sectoral undertaking which would normally carry
out recovery.

(36) When the local authority does not opt for the take-back
guarantee in respect of one or more or all materials, the
contract stipulates that it must ensure that the take-back
firms selected by it do take back all of the packaging
sorted in accordance with the MTR and proceed to
recycle this packaging using technological processes
which permit effective recovery and that those firms
inform both the local authority and Eco-Emballages
accordingly every three months. The name of each of
the take-back firms selected by the local authority must
be specified in the long-term programme contract.

(37) Under the terms of the long-term programme contract
and the latest approval, Eco-Emballages must pay the
following support to the local authority, irrespective of
whether or not the latter has opted for the take-back
guarantee:

— an amount per tonne sorted in accordance with the
MTR, with the amount varying according to the
material concerned,

— a financial contribution towards energy recovery,

— support for local communication,

— temporary support corresponding to the specific
situation: start-up, high-rise housing and dispersed
in the
rural communities,
context of youth employment schemes, etc.,

‘sorting ambassadors’

— aid for the provision of bottle banks for use by the

public.

(38)

(39)

The amount of support under each item is calculated in
accordance with the price scale approved by the public
authorities and is stipulated in the contracts. It takes
account, inter alia of the population actually covered by
selective collection.

The minimum take-back price paid by the designated
take-back firm to the local authority is laid down in the
long-term programme contract. Under the terms of both
the initial approval and the subsequent renewals, this
price is, subject to certain restrictions, positive for steel,
aluminium and glass and zero for paper/paperboard and
plastic.

(40)

If the local authority has not opted for the take-back
guarantee and enters into a contract with a take-back
firm of its choice,
it must, as Eco-Emballages' 1996
approval application stated, sell the products on market
terms.

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5. Sectoral contracts and operational

take-back

contracts

its territory for the duration of the contract between
Eco-Emballages and the local authority concerned.

(41)

Sectoral contracts (or take-back agreements) regulate the
relationship between Eco-Emballages and the industrial
firms which undertake to take back and recycle the
packaging collected, provided that it complies with the
MTR. There are five sectoral undertakings, namely:

— steel: initially Sollac SA, whose rights and obligations
were transferred to Usinor-Packaging SA in 2000,

(47)

— aluminium: France Aluminium Recyclage SA,

— paper/paperboard: Revipac,

— plastic: Valorplast SA,

— glass: Chambre syndicale des verreries mécaniques de

France (CSVMF).

(42)

Eco-Emballages does not enter into contracts simultane-
ously with several firms or bodies for the same material.

(48)

(43)

Following their renewal, the agreements will expire on
either 30 June 2004 (steel) or 31 December 2004
(aluminium, paper/paperboard, plastic and glass). A
decision on whether to extend them further will, in each
case, be taken not later than three months before the
corresponding expiry date.

(44) A management agreement is also annexed to the take-
back agreements.
It defines the terms of reference,
organisation and functioning of the two committees set
up between Eco-Emballages and the sectoral undertaking
concerned and provides for the establishment of a mate-
rials account, which is the share of Eco-Emballages' net
resources allocated to each material. In addition, there is
a correction method involving the application of a
weighting to take account, in particular in the allocation
of non-attributable costs, of varying performances and
different recovery rates for the various materials.

(45)

In the context of a take-back guarantee, it is not the
sectoral undertakings which actually take back pack-
aging waste but rather firms designated by each of them.
These are known as ‘designated take-back firms’. Eco-
Emballages claims not to have any influence on the
choice of designated take-back firms. However,
the
contracts concluded between the designated take-back
firms and the local authorities (operational take-back
contracts) are based on standard contracts ‘so as not to
undermine the guarantee given by the sectoral underta-
kings’. A specimen model for each contract, except the
one for plastic, was therefore proposed by Eco-Embal-
lages.

(46)

The different take-back contracts must stipulate that, if
there is a take-back guarantee, the local authority must
grant
the sectoral undertaking or take-back firm an
exclusive right to take back all the quantities sorted on

6. Research and development contracts

involvement in research and develop-
Eco-Emballages'
ment is essentially financial. In return, its co-contractor
undertakes to implement a given process industrially or
to allow Eco-Emballages to do so. These contracts regu-
late matters of industrial property.

E. RELEVANT MARKETS

The Commission has identified three relevant markets.
The first market in which Eco-Emballages operates is
that for services rendered to producers in the context of
taking over their obligations to contribute to or organise
the disposal of household packaging waste: this market
could be called the ‘market for collective systems for
taking over the obligation to take back and recover
household packaging’ or the ‘membership market’. Indi-
vidual and collective systems could also be considered as
belonging to the same market, which would then be the
market in systems for taking back and recovering house-
this does not change the
hold waste. Nevertheless,
analysis which follows.

(49)

(50)

(51)

(52)

is that

for the selective
The second relevant market
collection and sorting of all types of household pack-
aging by local authorities:
the ‘selective collection
market’. In this market, approved bodies give support to
local authorities in return for collection and sorting
services or, conversely, local authorities contribute to the
operation of the Eco-Emballages system in return for
financial compensation.

The third relevant market is that for the recovery of
materials by take-back firms and sectoral undertakings:
the ‘recovery market’.

It is not necessary in the case in point to define the
relevant
the
contracts do not give rise to competition problems.

service markets more precisely since

The geographic market for the first two service markets
above is France. Eco-Emballages has approved status and
operates its system throughout French territory.
Its
rights with regard to the Green Dot mark are likewise
limited to that territory. With regard to the third service
market, it is not necessary in the case in point to deter-
mine with precision if it also corresponds to French
territory or if
it extends to neighbouring or nearby
countries.

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(53)

the

relevant product market
These definitions of
(membership market) and geographic market (territory
of the country concerned) are similar to those adopted
in the Commission Decision of 20 April 2001 on the
system operated by Der Grüne Punkt-Duales System
Deutschland AG (DSD).

approval was renewed for a further six-year period from
1 January 1999 and, since then, it has been able to enter
into contracts with firms from all sectors in the same
way as Eco-Emballages. Its contracts with local authori-
ties are currently concentrated on largely rural departe-
ments.

F. STRUCTURE OF THE MARKETS

(54)

(55)

Eco-Emballages' official recovery target is 75 % of its
member producers' household packaging by June 2002.
At present, more than 60 % is collected and recycled.

By the end of 1997 Eco-Emballages was contractually
bound to 9 664 municipalities grouped into 281 local
authorities, there being more than 36 000 municipalities
and more than 2 000 local authorities in France. By the
end of 1998 it was contractually bound to 533 local
authorities representing 13 862 municipalities; by the
end of 1999 the figure was 19 487 municipalities, and
by the end of 2000 it was contractually bound to 1 114
local authorities representing 24 013 municipalities.

(56)

In 1997 the number of affiliated producers was 9 135,
of which more than 700 were outside France; in 1998
there were 9 311. In 1999 the number was 9 419 and
in 2000 there were 9 593.

(57) Of

the 4,845 million tonnes of domestic packaging
placed on the market in France in 2000, 3,395 million
the Eco-Emballages
tonnes came from members of
system. The figures are as follows for the various mate-
rials involved: 1,37 million of the 2,55 million tonnes of
glass, 0,79 million of the 0,9 million tonnes of plastic,
0,88 million of the 1,0 million tonnes of paper/paper-
board, and 0,355 million of the 0,395 million tonnes of
metal (1).

(58) As regards competition from rival collective systems,
Adelphe obtained approval on 5 February 1993 initially
to collect and recycle packaging produced in the wines
and spirits sector. Adelphe's approval was extended on
15 October 1996 so that it could ‘enter into contracts
with [producers] whose activity relates primarily to the
wine and spirits sector for the purpose of recovering the
household packaging in respect of which the contract
has been entered into’. It was therefore permitted from
that point onwards to receive packaging from such
firms, irrespective of the material involved. At the end of
1997 almost 12 000 producers, including four outside
France, were contributing to its system. The share of
domestic packaging in the wine and spirits sector
handled by Adelphe in 1997 was, according to its own
some 88 %. On 28 February 2000 its
statements,

(59)

The association Cyclamed has also been approved to
operate an individual system for medicinal product
packaging and the large retailer E. Leclerc has an
arrangement
for its shopping bags. These individual
systems are not, however, required to achieve the same
collection and recovery targets as the collective systems.

G. AMENDMENTS MADE AND UNDERTAKINGS GIVEN

AT THE COMMISSION'S REQUEST

(60) On 18 January 2000 the Commission departments
informed Eco-Emballages of
their view that certain
clauses of the agreements were liable to fall within the
scope of the ban in Article 81(1) of the EC Treaty and
did not, as they stood, qualify for exemption under
Article 81(3).

(61) On 28 February 2000 Eco-Emballages offered to amend
those clauses in order to respond to the Commission's
comments, and subsequently further clarified those
commitments and offered additional undertakings. With
regard to the notified agreements, it has amended and/or
added the following provisions and given the following
undertakings:

(a) Even if Eco-Emballages may require each of

its
member producers to fulfil its obligations under the
Decree and consequently to contribute to or orga-
nise the disposal of all its packaging waste, only a
member's products for which it declares its pack-
aging to Eco-Emballages are covered by the system.
Each producer is therefore required to declare to
Eco-Emballages only the product household pack-
aging in respect of which it has entered into a
contract with the company. This means that the
producer can enter into a contract with Eco-Embal-
lages for certain types of material only and for some
or all of the packaging using such material.

(b) Since the Eco-Emballages system concerns packaging
if a
for products intended for the French market,
producer has (mistakenly) declared to Eco-Embal-
lages packaging for products that are exported,
it
may, provided it supplies adequate documentary
evidence, request Eco-Emballages to regularise its
situation.

(1) The figures for 1997 were as follows: 1,24 million of

the 2,3
million tonnes of glass, 0,81 million of the 0,9 million tonnes of
plastic, 0,89 million of the 1,0 million tonnes of paper/paperboard,
and 0,36 million of the 0,4 million tonnes of metal.

(c) Each producer now has the right to terminate its
contract at the end of each twelve-month period
subject to six months' notice.

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(d) Although Eco-Emballages may require each local
authority to collect and sort all five materials, the
latter may enter into a contract with Eco-Emballages
for one or more materials only and with another
body for the others.

(e) Each local authority may, at any time, unilaterally
terminate its contract without being required to pay
any compensation. Should it do so, at the local
authority's request Eco-Emballages will provide it
with any necessary information concerning its offer
to enable the local authority to compare offers from
different bodies in respect of each material.

(f) All operational take-back contracts between local
authorities and designated take-back firms may be
amended without requiring Eco-Emballages' agree-
ment.

(g) As regards use of the Green Dot mark by systems, in
accordance with the third supplementary agreement
concluded with Pro Europe (see recital 20) Eco-
Emballages considers itself under the obligation to
grant any competing system, where appropriate, a
sublicence with the same territorial and material
licence.
scope as its principal

(h) The framework contract between Eco-Emballages
and Adelphe was amended on 16 February 2001
such that neither party may demand the other's list
of members, but either party may request the other
to confirm within a period of one week whether or
not a given producer affixing the Green Dot mark to
its products is a member.

(i) Eco-Emballages never receives from producers any
amount other than consideration for taking over
their obligation under the Decree.

(62)

there

remainder,

an individual

(j) In the case of a hybrid system (the producer belongs
to Eco-Emballages for some of its packaging and, for
the
system
is
approved by the authorities of which it is a member
or which it has set up), if the packaging covered by
the Eco-Emballages system accounts for most of the
producer's packaging, the producer is allowed to
affix the Green Dot mark to all
its packaging,
including that covered by its individual system. The
producer must be able to provide, at Eco-Emballages'
request and not systematically, a statement from its
auditors attesting to the quantity of packaging
covered by the individual system. If, on the other
the packaging covered by the individual
hand,
system accounts for most of the producer's pack-
aging, the producer must normally limit affixing of
the Green Dot mark to not more than the quantity
covered by the Eco-Emballages system, except where
it does not consider this to be adequate and rational.
In that eventuality, and as long as it can demonstrate
that the individual system achieves recycling and
recovery results equivalent to those required by the
French authorities of French collective systems and it
is able to provide, at Eco-Emballages' request and

from its auditors
not systematically, a statement
attesting to the quantity of packaging covered by the
individual system, the producer may affix the Green
Dot mark to all

its household packaging.

(k) Where the producer is authorised in France to have
an individual system for all its packaging and the
same types of packaging belong to a collective
collection and recovery system using the Green Dot
the European
mark in another Member State of
Economic Area, and as long as it can demonstrate
that the individual system achieves recycling and
recovery results equivalent to those required by the
French authorities of French collective systems, Eco-
the producer a contract
Emballages will offer
allowing it to distribute packaging bearing the Green
Dot mark in French territory. It must nevertheless
affix to the packaging, in the vicinity of the Green
Dot mark,
an indication enabling the French
consumer to understand clearly that the packaging
has not contributed to a French collective system. If
the parties cannot agree on the nature of the indica-
tion within a period of three months, an expert is to
be appointed by the magistrate presiding over the
French commercial court with territorial jurisdiction,
at the request of the earliest petitioner, under the
emergency expertise procedure.

(l) The clause concerning interest on arrears for late
membership has been supplemented with the clarifi-
cation that such interest is due with effect from 31
December 1993 or from the date the activity subject
the
to the Decree begins, where that
products in question have not been either covered
by another
the subject of
proceedings for non-compliance with the Decree.

recovery system or

is later,

if

The new version of the producer contract (recital 61,
points (a), (b) and (c) has been in force since 21 June
2000. As regards the new version of the long-term
programme contract with local authorities (points (d)
and (e)), Eco-Emballages has informed the Commission
it was approved by the Association of French
that
Mayors on 12 July 2000,
the amendments to
that
existing contracts had been sent to the local authorities
concerned and that new contracts subsequently signed
also contained those provisions. The
amendment
referred to in point (f) above was confirmed by Eco-
Emballages in a letter to the Commission dated 7 July
2000. The undertaking outlined in point
(g) derives
from the interpretation given by Eco-Emballages to the
contract it concluded with Pro Europe on 4 December
1998. The amendment described in point (h) has been
in force since 16 February 2001. Lastly, the undertak-
ings referred to in points (i), (j), (k) and (l) were given on
14 March 2001.

H. COMMENTS BY INTERESTED THIRD PARTIES

(63) No formal complaint has been lodged against the noti-

fied system.

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(64)

Following publication of the notice pursuant to Article
19(3) of Regulation No 17, the Commission received
comments from two corporate interested third parties.
to the terms
Those comments related,
under which sublicences are granted for use of
the
Green Dot mark by a competing system, the scope of
for producers'
producer contracts,
contributions, and Eco-Emballages
the
that
exemption decision applied for be issued with retroac-
tive effect.

the price scales

in particular,

request

(65) After examining the comments in detail, the Commis-
sion considers that it has no grounds for departing from
its provisionally favourable position, for the reasons set
out below.

(66)

First, as already mentioned, examination of the terms on
which sublicences are granted has led to an amendment
whereby Eco-Emballages can no longer require a subli-
censee to provide it with a list of its members.

(67)

(68)

The Commission does not comment in this Decision on
the question of the existence of a principal licence for
each country and of sublicences, which is being exam-
ined separately. It should therefore be stressed that this
Decision does not comprise any assessment, either
favourable or unfavourable, of the licensing principles
established by Pro Europe.

Second, the Commission accepts that the price scales for
producers' contributions are calculated having due
regard for the ‘polluter pays’ principle. The independent
study mentioned at recital 10 has made it possible to
identify a cost per material according to the different
methods of collection (bottle banks, etc. for use by the
public, door-to-door collection) and types of collection
area (rural, semi-urban, urban or other). A weighted
average calculated in this manner constitutes the basis
for the contribution per material (under the Decree, the
local authorities are reimbursed any additional cost they
incur as a result of sorting the waste).
It would be
disproportionate to require a more detailed differentia-
tion, i.e., within the same material. Plastic is the only
material that can be divided into different types, and
consumers are unlikely to distinguish between them.
When a packaged product is placed on the market, the
abovementioned two calculation parameters are in any
case not known. Furthermore, since the price scale is

(69)

composed of a flat-rate amount per package, designed to
combat
the proliferation of small packages, and a
weight-based contribution determined in this manner for
each material, producers are encouraged to reduce pack-
aging at source: the less they package their products, the
less they contribute financially to the system.

Third, the approval by the authorities of identical price
scales for systems serving the same purpose is the result
of a measure taken by the State and does not constitute
a restrictive practice (1). This situation has arisen from
the authorities' desire to ensure the sustainability of the
selective collection and recovery of household packaging
on the French market. According to the French authori-
ties, scales of support for local authorities that differ
between approved firms might result in higher prices.
The introduction of a single scale of support for local
authorities would help to limit that trend, which could
encourage an increase in spending. The French authori-
ties have also explained that the costs of selective collec-
tion and sorting of household packaging waste are peri-
odically analysed, in particular by Ademe (the Agency
for the Environment and Management of Energy), and
such analyses are taken into account when price scales
are established. As long as the additional cost of selective
collection and sorting, for which local authorities are to
be compensated, is determined at national level for each
type of collection and not for each local authority, it
would, according to the French authorities, be difficult
for the authorities to establish the price scales in any
other way. Lastly, the authorities consult the Advisory
Committee composed of all
involved,
including consumers, before setting the price scales in
accordance with public-interest criteria.

the partners

I. ARTICLE 81(1) OF THE EC TREATY AND ARTICLE
53(1) OF THE EEA AGREEMENT

(70)

(a) Agreements between undertakings which may affect

trade between Member States

The agreements between Eco-Emballages and producers
and between Eco-Emballages and sectoral undertakings
these
are agreements between undertakings since all
natural or legal persons carry on an economic activity.
On the question whether the agreements concluded with
local authorities are agreements between undertakings
within the meaning of Article 81 of the EC Treaty, a
distinction must be drawn between a situation where the
State acts in the exercise of official authority and that
where it carries on economic activities of an industrial
or commercial nature by offering goods or services on
the market (2). By entering into contracts with Eco-
Emballages with a view to both receiving financial
support in return for establishing a household waste
selective collection service and proof that the waste is

(1) See, for example,

in this connection the judgment of the Court of
Justice of the European Communities in Case C-38/97 Autotrasporti
Librandi [1998] ECR I-5955, paragraph 37.

(2) See, for example, in this connection the judgments of the Court of
Justice in Cases 118/85 Commission v Italy [1985] ECR I-2599,
paragraph 7, and C-343/95 Diego Call & Figli [1997] ECR I-1547,
paragraph 16.

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recovered, and also selling sorted household packaging
to take-back firms which provide them with proof of
recovery,
the local authorities are carrying on an
economic activity of an industrial and commercial
nature within the meaning of the above. The fact that
they do so under their statutory obligation to dispose of
household waste is insufficient to enable them to be
regarded as acting in the role of an official authority. In
accordance with Article 86(2) of the EC Treaty, the
agreements in question are therefore subject
to the
Community rules on competition in so far as the
application of
the
performance, in law or in fact, of the particular task of
household waste disposal assigned to the municipalities
and local authorities in the public interest.

such rules does not obstruct

(71)

Since a number of members are from other EU Member
States, the producer contract is therefore liable to have
effects on trade between Member States. The other
agreements are aimed at redistributing the producers'
the latter
contributions to local authorities, so that
collect the packaging and pass it on to the take-back
firms for recovery. Any changes to the support for local
authorities thus have repercussions on the producers'
contributions. The system consequently operates as a
whole and all the contracts therefore have appreciable
actual or potential effects on trade between Member
States.

(b) Articles of association

(72)

Eco-Emballages' articles of association do not contain
any exclusive clause restricting the shareholders' freedom
of action on the relevant markets and therefore do not
contravene Article 81 of the EC Treaty.

(c) Duration and scope of the producer contracts

(74)

(75)

(76)

(77)

(78)

(79)

furthermore, a competing system can enter the

and,
membership market, which is not foreclosed.

Likewise, since it has been expressly confirmed (1) that a
producer can opt to join the system in respect of certain
types of material only and in respect of some or all of
the packaging composed of each material, the Commis-
sion takes the same view as in recital 73 with regard to
the scope of contracts.

The clause concerning interest on arrears
late
payment of contributions applied to producers joining
after 31 December 1993 does not create any barrier to
entry to the membership market for competing systems,
nor does it constitute a manifest abuse.

for

(d) Duration and scope of local authority contracts

that

Since it has been expressly confirmed (2)
local
authorities have the right to terminate their contract at
any time, the Commission takes the view that, in terms
of the duration of contracts, local authorities' freedom of
choice and action is not unduly restricted and, further-
more, a competing system can enter the selective collec-
tion market, which is not foreclosed.

Likewise, since it has been expressly confirmed (3) that a
local authority can enter into a contract with Eco-Embal-
lages in respect of one or more materials and with
another body for the others, the Commission takes the
same view as in recital 76 with regard to the scope of
contracts.

The obligation on the local authority to enter into a
contract with Eco-Emballages in respect of the entire
sorted tonnage of a particular material does not consti-
tute in the case in point a restriction of competition
within the meaning of Article 81(1) of the EC Treaty
because, as the local authority can terminate its contract
this clause does not create any
whenever it wishes,
exclusive right that appreciably affects the competitive
situation on the selective collection market.

(e) Duration of sectoral contracts

These contracts run for six years, and Eco-Emballages
concludes only one sectoral contract for each material.
Eco-Emballages is under the obligation to present to
local authorities that opt for the take-back guarantee, for
each material, the sectoral undertaking concerned as the
designated take-back firm. This exclusivity is unilateral,
and the contract does not prevent sectoral undertakings
from working with any other systems. For two of the
five materials (aluminium and steel) there is, according

(73) Now that all producers have the right to terminate their
contract each year, the Commission takes the view that,
in terms of
the duration of contracts, producers'
freedom of choice and action is not unduly restricted

(1) According to Eco-Emballages, this was already the case before the

clause in question was amended.

(2) According to Eco-Emballages, a local authority, as a legal person
governed by public law, could in any event terminate its contracts
at any time, as confirmed by well established case-law in France.
(3) According to Eco-Emballages, which backed up its claim with an
example of a contract, this was already the case before the clause in
question was amended.

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to the information available, in any case only one manu-
facturer on the French market and there is therefore no
choice of sectoral undertaking. If the local authority does
not opt for the take-back guarantee, it has a free choice
of take-back firm, and any take-back firm can thus gain
in the recovery of materials
access to the market
collected by the local authorities.

system and have their sorted waste recycled. The price
actually paid may always exceed the minimum price laid
down. Eco-Emballages's profit is only indirect. For the
above reasons,
its
involvement do not contravene Article 81(1) of the EC
Treaty.

the existence and the results of

(80)

(81)

Since Eco-Emballages cannot itself provide local authori-
ties with a take-back guarantee, it needs for that purpose
a sectoral contract for each material covering the dura-
tion of its obligations. The Commission takes the view,
on the basis of the information available, that access to
the recovery market is not appreciably restricted by the
sectoral contracts, as the take-back guarantee is optional
for local authorities and the Eco-Emballages' system
concerns only slightly more than one third of packaging
waste on the French market
(5,4 million tonnes of
household packaging waste out of a total of 13 million
tonnes of packaging waste in 1997). Glass is the only
material most of which is handled by the Eco-Embal-
lages or the Adelphe system, and since the sectoral
undertaking is a trade association which introduced the
system that was subsequently taken over by the collec-
tive systems, the Eco-Emballages system does not have
appreciable effects on the recovery market.
In these
the
particular circumstances on the French market,
Commission takes the view that these contracts do not
constitute a restriction of competition in breach of
Article 81(1) of the EC Treaty.

(f) Involvement in contracts on the recovery market

The notified agreements contain provisions relating to
the minimum take-back price paid by the take-back firm
to the local authority, and consequently a relationship in
which Eco-Emballages is not involved. The minimum
take-back price is set in the local authority and sectoral
contracts for a period of six years. Nevertheless, it is no
more than a floor price and the price actually paid
depends on the state of the market, provided that it is
always either zero or positive. Eco-Emballages takes part
in this price-setting process because the system is based
on the sharing of costs between producers, local authori-
ties and sectoral undertakings and it acts as the interface
between those parties. Neither could it guarantee the
payment of that price to the local authorities if it was
not involved in setting it. Eco-Emballages' involvement
in the terms on which the sectoral undertakings
purchase waste collected by the local authorities is
designed to avoid the latter having to run the risks of
market fluctuations and to pay to have their packaging
waste recycled, something which would be liable to
deter them from joining the system. The existence of the
minimum price enables local authorities to join the

(g) Use of the Green Dot mark

(82)

Provided that Eco-Emballages fulfils its undertaking to
allow other collective systems to use the Green Dot
mark in their system, in return for payment of a share of
the amounts claimed by Pro Europe,
the contract
granting it the principal licence in France does not create
an unjustifiable exclusive right and is not incompatible
with Article 81(1) of the EC Treaty.

to the use of

(83) As regards the producers' right and obligation to affix
the Green Dot mark to packaging, in its Decision on
DSD, in a proceeding pursuant to Article 82 of the EC
Treaty concerning the German market, the Commission
found against the practice whereby the fee payable was
linked not
the service releasing the
producer from its packaging take-back and recovery
obligations but simply to the use of the Green Dot mark
on packaging. In view of the undertakings given with
regard to use of the Green Dot mark by producers
taking part at the same time or entirely in an individual
system or another collective system, the terms binding
producers do not create any exclusive right
for the
benefit of Eco-Emballages and to the detriment of its
actual and potential competitors. Furthermore, the prob-
lems which prompted the Commission to find that DSD
had abused its dominant position do not currently arise
on the French market,

(84)

Lastly, it should be recalled that, if a product bearing the
Green Dot is exported and if proper proof is provided,
no contribution can be claimed by Eco-Emballages for
the use of the Green Dot on the packaging. Similarly, if
a product bearing the Green Dot is handled in France by
a competing system, no contribution is payable to Eco-
Emballages.

(85) Under these circumstances, the contracts and clauses
applied by Eco-Emballages for the use of the Green Dot
are not in breach of Article 81(1) of the EC Treaty.

(h) Conclusion

(86)

To sum up, in view of the arguments set out above and
provided that the undertakings given are carried out, the
establishment and operation of
the Eco-Emballages
system in accordance with the texts and contracts
hitherto in force are not caught by Article 81(1) of the
EC Treaty,

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HAS ADOPTED THIS DECISION:

Article 1

On the basis of the facts in its possession, and in particular in view of the undertakings listed in recital 61
of this Decision, the Commission has no grounds for action under Article 81(1) of the EC Treaty or Article
53(1) of the EEA Agreement in respect of the notified agreements concerning a system of selective
collection and recovery of household packaging waste established by Eco-Emballages SA, as they currently
stand.

Article 2

This Decision is addressed to:

Eco-Emballages SA
44 avenue Georges Pompidou
F-92302 Levallois-Perret Cedex.

Done at Brussels, 15 June 2001.

For the Commission

Mario MONTI

Member of the Commission