2001/837/EC: Commission Decision of 17 September 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Cases COMP/34493 — DSD; COMP/37366 — Hofmann and DSD; COMP/37299 — Edelhoff and DSD; COMP/37291 — Rethmann and DSD; COMP/37288 — ARGE and five others and DSD; COMP/37287 — AWG and five others and DSD; COMP/37526 — Feldhaus and DSD; COMP/37254 — Nehlsen and DSD; COMP/37252 — Schönmackers and DSD; COMP/37250 — Altvater and DSD; COMP/37246 — DASS and DSD; COMP/37245 — Scheele and DSD; COMP/37244 — SAK and DSD; COMP/37243 — Fischer and DSD; COMP/37242 — Trienekens and DSD; COMP/37267 — Interseroh and DSD) (Text with EEA relevance.) (notified under document number C(2001) 2672)
Date: 2001-09-17
Institutions: European Commission
Subjects: economic concentration, merger control, packaging, provision of services, restriction on competition, waste recycling

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 17 September 2001

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

(Cases COMP/34493 (cid:151) DSD; COMP/37366 (cid:151) Hofmann and DSD; COMP/37299 (cid:151) Edelhoff and
DSD; COMP/37291 (cid:151) Rethmann and DSD; COMP/37288 (cid:151) ARGE and five others and DSD;
COMP/37287 (cid:151) AWG and five others and DSD; COMP/37526 (cid:151) Feldhaus and DSD; COMP/37254
(cid:151) Nehlsen and DSD; COMP/37252 (cid:151) Sch(cid:246)nmackers and DSD; COMP/37250 (cid:151) Altvater and
DSD; COMP/37246 (cid:151) DASS and DSD; COMP/37245 (cid:151) Scheele and DSD; COMP/37244 (cid:151) SAK
and DSD; COMP/37243 (cid:151) Fischer and DSD; COMP/37242 (cid:151) Trienekens and DSD; COMP/37267
(cid:151) Interseroh and DSD)

(notified under document number C(2001) 2672)

(Only the German text is authentic)

(Text with EEA relevance)

(2001/837/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, the First Regulation implementing Articles 85 and 86 of
the Treaty (1), as
last amended by Regulation (EC) No
1216/1999 (2), and in particular Articles 2, 6 and 8 thereof,

for

exemption of

Having regard to the applications for negative clearance and
notifications for exemption of the agreements on which the
DSD system is based which were submitted by DSD under
Articles 2 and 4 of Regulation No 17 on 2 September 1992;
to the supplementary applications for negative clearance and
notifications
Service Agreement
submitted by the waste disposal undertakings Trienekens on
17 September 1998, Fischer on 17 September 1998, SAK on
18 September 1998, Scheele on 18 September 1998, DASS on
21 September 1998, Altvater on 21 September 1998,
Sch(cid:246)nmackers on 25 September 1998, Nehlsen on 28
September 1998, Feldhaus on 29 September 1998, Rethmann
on 30 October 1998, Edelhoff on 6 November 1998,
Hofmann on 4 January 1999, and by the waste disposal
associations BVSE and VKS on 29 October 1999; and to the

the

application

and
supplementary
notification for exemption of
the Guarantee Agreements
submitted by the waste disposal service provider Interseroh on
9 October 1998,

clearance

negative

for

Having regard to the decision of 25 October 1996 to initiate a
proceeding in this case,

Having invited interested undertakings under Article 19(3) of
Regulation No 17 to submit their observations (3),

consulting the Advisory Committee on Restrictive

After
Practices and Dominant Positions,

Whereas:

A. THE FACTS

I. INTRODUCTION

(1)

On 2 September 1992 Der Gr(cid:252)ne Punkt (cid:151) Duales System
in Cologne,
Deutschland AG (hereinafter called (cid:145)DSD(cid:146)),
notified a number of agreements with a view to
obtaining negative clearance or a decision granting
exemption from the prohibition on restrictive practices.
DSD operates in Germany a countrywide system for the
collection and recovery of sales packaging. The system
is designed to meet the requirements of the German
Packaging Ordinance. The notification concerns those

(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.

(3) OJ C 100, 27.3.1997, p. 4.

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agreements (the Constitution or Statutes,
the Service
and the
the Trade Mark Agreement
Agreement,
Guarantee Agreements) on which the operation of the
system is based.

(9)

the notification pursuant

to
Following publication of
Article 19(3) of Regulation No 17, in a notice in which
the Commission announced its intention of taking a
favourable view of the agreements in question under
Article 81, 13 sets of observations in all were received
from interested third parties (4).

Between September 1998 and January 1999 individual
the Service Agreement were received
notifications of
from altogether 12 waste disposal
firms having such
agreements with DSD. Two joint notifications of the
same agreement were also received, each from a waste
disposal association acting on behalf of
six waste
disposal firms.

GmbH,

disposal

Edelhoff

submitting

The waste
individual
firms
notifications were Friedrich Hofmann GmbH & Co,
Rethmann
Entsorgung
S(cid:252)d
Entsorgungswirtschaft GmbH & Co KG,
Feldhaus
Recycling GmbH & Co KG, Karl Nehlsen GmbH & Co
KG, Sch(cid:246)nmackers Umweltdienste GmbH & Co KG,
Jacob Altvater GmbH & Co, DASS GmbH, Erwin
SAK Sondersh(cid:228)user
Scheele GmbH & Co KG,
Entsorgungs GmbH,
Recycling
Rohstoff
Fischer
Freudenstadt GmbH, and Trienekens GmbH.

e.V.

und

Entsorgung

On 29 October 1998 the BVSE Bundesverband
Sekund(cid:228)rrohstoffe
(Federal
Association for Secondary Raw Materials and Waste
Disposal
(BVSE)) submitted a joint notification of the
Service Agreement on behalf of ARGE Duales System
Storman-Lauenburg;
und
Verwertungs GmbH; Cordier Abfallentsorgung GmbH;
TWR Tenner Wertstoff
Rudolf
Recycling GmbH; and Ostth(cid:252)ringer Recycling- und
Handels-GmbH.

Fritsche GmbH;

Abfallberatungs-

ART

und

Abfallwirtschaft

Likewise on 29 October 1998 the VKS Verband
Stadtreinigung
Kommunale
(Association for Local Waste Management and Refuse
Collection (VKS)) submitted a joint notification of the
Service
AWG (cid:151)
Abfallwirtschafts-Gesellschaft Donau-Wald mbH; Betrieb
Entsorgung
f(cid:252)r
Dortmund GmbH; ESG Entsorgungswirtschaft Soest
GmbH; VIVO Gesellschaft
f(cid:252)r Abfallvermeidung; and
USB Umweltservice Bochum GmbH.

System im Saarland;

das Duale

Agreement

behalf

on

of

the

In addition, over 200 waste disposal
firms have
informed the Commission of
the Service Agreement
through
Deutschen
Entsorgungswirtschaft
the
These
German Waste Disposal
waste-disposal firms are listed in the index attached to
this Decision.

(Federal Association
Business

Bundesverband

(BDE)).

der

of

On 9 October 1998 the firm Interseroh AG notified
the waste
acceptance and guarantee agreements for
fractions paper and board,
tinplate, aluminium, and
other composites.

in which it

On 3 August 2000 the Commission sent a statement of
objections to DSD initiating proceedings under Article
82 of the EC Treaty. On 20 April 2001 the Commission
adopted Decision 2001/463/EC (5)
found
that DSD was engaging in conduct incompatible with
the first
the common market by requiring, under
sentence of Article 4(1) and the first sentence of Article
5(1) of the Trade Mark Agreement, the payment of a
license fee for the total quantity of sales packaging
carrying the Green Dot trade mark put into circulation
to the
in Germany even where undertakings subject
obligations arising out of the Packaging Ordinance:

(a) either use DSD’s exemption service as referred to in

Article 2 of the Trade Mark agreement,

(cid:151) only for partial quantities,

(cid:151) or do not use the said service but put

into
circulation in Germany uniformly designed
packaging which is also in circulation in another
Member State of the European Union or of the
European Economic area and which participates
in a take-back system using the Green Dot trade
mark;

(b) provided the obligated undertakings prove that, in
respect of the quantity or partial quantity for which
they do not use the exemption service, they fulfil
through
their
competing
through
self-management solutions.

Packaging Ordinance obligations
or

exemption

systems

(10)

This Decision is concerned with the Constitution or
Statutes,
the Guarantee Agreements and the Service
Agreements.

II. THE PACKAGING ORDINANCE

(11) On 12 June 1991 the Verordnung (cid:252)ber die Vermeidung von
Verpackungsabf(cid:228)llen (Ordinance on the Avoidance of
Packaging Waste, or (cid:145)Packaging Ordinance(cid:146)) was adopted
the Ordinance
in Germany. An amended version of
entered into force on 28 August 1998. The Ordinance
is
impact of
reduce
packaging waste on the environment.

intended to prevent or

the

(12)

Packaging Ordinance

The
is binding mainly on
packaging manufacturers and distributors. A distinction
is made in Section 3(1) between sales packaging,
transport packaging and secondary packaging. Sales
packaging is packaging which is provided as a sales unit
and is used by the final consumer.
(cid:145)Sales packaging(cid:146)
within the meaning of
the Ordinance may also be
packaging used by the distributive trades, restaurants
and other service providers which makes possible or
supports the handing over of goods to final consumers
crockery or
(service packaging), or non-returnable

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(4) See footnote 3.

(5) OJ L 166, 21.6.2001, p. 1.

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goods

transit

cutlery.

protects

between

Transport

packaging

is
non-returnable
the transport of goods,
packaging which facilitates
which
the
in
manufacturer and the distributor against damage or
which is used for reasons of safety of transportation and
is used by the distributor. Secondary packaging is
packaging which is used as an additional
layer of
packaging over sales packaging and which is not needed
for reasons of hygiene, preservation or protection of the
goods against damage or soiling for sale to the final
consumer.

(15) Germany stated in answer to questions put by the
Commission that the quotas which have to be met are
to be met exclusively by taking back sales packaging at,
or in the immediate vicinity of, the actual point of sale
and that any additional collections organised near
private dwellings may not count towards these quotas.
The Cologne Regional Court
(Landgericht) has held,
however,
the quota need not be met only via
collections at the point of sale (7). Pursuant to Section
6(2) of the Packaging Ordinance, the packaging taken
back by the distributor pursuant to subsection 1 must
in turn be taken back by its manufacturer and (previous)
distributors and must be reused, or within stated quotas
recycled, outside the public waste-management system.

that

The terms (cid:145)manufacturer(cid:146) and (cid:145)distributor(cid:146) are defined in
Section 3(7) and (8) of
the Packaging Ordinance. A
manufacturer within the meaning of the Ordinance is
someone who manufactures packaging, packaging
materials or products from which packaging is directly
made, or who imports packaging into the territory
covered by the Ordinance. A distributor within the
someone who puts
meaning of
packaging, packaging materials or products from which
packaging is made, or packaged goods, into circulation,
regardless of the marketing stage. A distributor within
the Ordinance may also be the
the meaning of
sentence of
mail-order
Section 3(10) of
the Packaging Ordinance, a final
consumer is the purchaser who does not sell on the
goods in the form in which they are delivered to him.

the Ordinance is

trade. Pursuant

to the first

(16)

(17)

(13)

(14)

it

the

that

the distributor of

The rules on sales packaging, secondary packaging and
transport packaging differ. As far as sales packaging is
the Packaging Ordinance
concerned, Section 6(1) of
sales packaging is
provides
free of
obliged to take back from final consumers,
charge, used, empty sales packaging at, or
in the
immediate vicinity of, the actual point of sale and to
accordance with
recover
quantitative
in
the Annex to the Ordinance (the
requirements of
so-called self-management
solution). The distributor
must draw the attention of the private final consumer
by means of clearly visible, legible labelling to the fact
that the packaging may be returned (third sentence of
Section 6(1)). The distributor’s take-back obligation is
limited to packaging of the type, shape and size, and to
packaging of those goods, which the distributor carries
in his range (fourth sentence of Section 6(1)). In the
case of distributors with a sales area of less than 200
square metres, the take-back obligation applies only to
packaging for the brands which the distributor puts into
circulation
6(1)). A
corresponding take-back obligation is also imposed on
mail-order firms, which have, for example, to provide
adequate facilities within a reasonable radius of the final
consumer (sixth sentence of Section 6(1)) (6).

sentence

Section

(fifth

of

to Section 11 of
and

Pursuant
manufacturers
responsibility for fulfilling all
obligations to third parties.

distributors may

the Packaging Ordinance,
delegate
take-back and recovery

packaging

to manufacturers

Pursuant to the first sentence of Section 6(3) of the
take-back and recovery
the
Packaging Ordinance,
obligation does not
and
apply
distributors participating in an extensive system which
the distributor’s sales territory guarantees
throughout
the regular collection of used sales packaging from the
final consumer or in the vicinity of the final consumer.
The system must likewise meet certain recovery quotas.
There is no legal obligation to participate in such a
system once it has been set up. Firms which do not
participate continue to be subject
to the individual
take-back obligation. The scope of a system under
Section 6(3) of the Packaging Ordinance is restricted to
collected
final
sales
consumers (8). Private
consumers within the
final
meaning of the Ordinance are, according to the second
sentence of Section 3(10), private households and
in particular
comparable sources of waste generation,
offices,
restaurants,
educational
barracks,
establishments,
the offices of professional
charitable organisations,
people,
enterprises,
excluding print shops and other paper-using businesses,
which can have their packaging material disposed of at
the rate normally associated with private households
using normal household containers for paper and board
and lightweight packaging with a capacity no greater
than 1 100 litres for each material.

agricultural holdings

hotels,
hospitals,

from private

government

and craft

canteens,

(6) See L(cid:252)beck Regional Court (Landgericht) judgment of 23 January

2001, ref. 11 0 126/00.

(8) See Section 6(3) and Section 3(1), point 2, and (10), and the third
sentence of paragraph 1 of Annex I to the Packaging Ordinance.

(7) See Cologne Regional Court judgment of 13 January 2000, ref. 31

0 991/99.

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(18)

(19)

(20)

Pursuant to paragraph 2 of point 4 of Annex I to the
Packaging Ordinance, manufacturers and distributors
have to make it known that they are participating in a
system pursuant
the Packaging
to Section 6(3) of
Ordinance by marking packaging or by other suitable
means (e.g. by informing customers at the point of sale
or by a package leaflet). The marking of packaging with
a system mark in the absence of membership of the
system is not punishable by a fine under the Packaging
Ordinance (9).

Recognition as an extensive system within the meaning
of Section 6(3) of the Packaging Ordinance is granted
by decision of the competent authority of the Land. The
fourth sentence of Section 6(3) of
the Packaging
Ordinance provides that the system must be compatible
with existing collection and recovery
as
employed by the local bodies responsible for waste
collection. In practice, the recognition of a system by
the competent Land authority is dependent on a
compatibility(cid:146) being issued by the
(cid:145)declaration of
relevant body. This means that municipal and rural
district
agreement
concluded in their territory between the system operator
and the collector.

authorities must

endorse

systems

the

In an annex to the Ordinance,
the quantitative
conditions for recognition are laid down. Before the
Ordinance was amended, these collection and sorting
quotas were defined by reference to the total amount of
in the source area (i.e. the Land).
packaging material
Thus,
for example, as of 1 July 1995 80 % of all
packaging material had to be covered by the collection
system. From the materials collected, 90 % of glass,
tinplate and aluminium and 80 % of paper and board,
plastics and composite packaging had to be sorted out
into a quality suitable for recycling. During the period
from 1993 until 30 June 1995 reduced quota
requirements applied.

(21) Once the Packaging Ordinance was amended,

this
absolute calculation method was converted into an

(9)

(Question put by the Commission:) (cid:145)Does the Packaging Ordinance
allow a range of packaging to be uniformly marked despite its
being partially disposed of under Section 6(3) of the Packaging
Ordinance (e.g.
in the circumstances provided for in the ninth
sentence of Section 6(1) of the Ordinance), bearing in mind that
the distributor cannot
foresee which specific packaging will be
disposed of in the vicinity of the shop and which will be disposed
of in the vicinity of the home?(cid:146)
(Answer given by Germany:) (cid:145)The marking of packaging with the
system mark pursuant to paragraph 2 of point 4 of Annex I in the
absence of membership of the system is not punishable by a fine
under the Packaging Ordinance. It may, however, be caught by
other legal provisions, such as trade mark law.(cid:146)

solution. At

the Ordinance as

and distributors participate

individual-system-based calculation method (i.e. one
covering the sales packaging fed into a given system). In
future, moreover, those manufacturers and distributors
who do not participate in a system pursuant to Section
6(3) of the Packaging Ordinance also have to meet these
quantitative requirements. Since 1 January 2000, 75 %
of packaging made of glass, 70 % of packaging made of
tinplate, paper and board, and 60 % of packaging made
of composites must be recovered both by the operators
of extensive systems within the meaning of Section 6(3)
regards packaging for which
of
manufacturers
in their
system and by manufacturers and distributors who opt
for a self-management
least 60 % of
packaging made of plastic must be recovered, and at
this quota must be recovered using
least 60 % of
processes whereby new, physically identical material is
produced or the plastic remains available for another
(so-called reusable material process).
material use
for which no specific
Packaging made of material
recovery methods are prescribed is to be recycled as far
as is technically possible and economically reasonable.
In the case of a self-management solution, compliance
with the take-back and recovery requirements must be
certified by an independent expert on the basis of
verifiable documents (paragraph 1 of point 2 of Annex
I). An exemption system must
furnish verifiable
evidence of the quantities collected and recovered. At
the request of the competent authority, the evidence
must be confirmed by an independent expert’s report
(paragraph 4 of point 3 of Annex I).

the consumer and of

system is possible and that

(22) Germany has indicated that a simultaneous combination
of the self-management solution and participation in a
Section 6(3)
therefore
participation in a Section 6(3) system with a certain
quantity of a packaging product is also possible. In the
interests of
the authorities,
however, a degree of
transparency must be brought
about as to which packaging is subject to the take-back
obligation at or in the immediate vicinity of the shop
and which is not. Germany has also confirmed that,
final
pursuant
consumer
to leave the
free to decide whether
packaging in the shop or return it to the shop later, or
to take it to a disposal point near his home (10).

Packaging Ordinance,

to the
is

the

(10)

(cid:145)Is it correct

(Question put by the Commission:)
to say that,
pursuant to the Packaging Ordinance, the final consumer is free to
decide whether to leave the packaging in the shop or to bring it
back there, or to take it to a disposal point near his home?(cid:146)
(Answer given by Germany:) (cid:145)The Packaging Ordinance does not
contain any express provision requiring the final consumer to
return the packaging. The assumption contained in the question is
therefore correct.(cid:146)

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(23) Where the distributor and the manufacturer do not fulfil
the obligations laid down in the first sentence of Section
6(1) and the first sentence of Section 6(2) of
the
Packaging Ordinance by taking back packaging at the
point of sale, they have to ensure, pursuant to the ninth
sentence of Section 6(1), read in conjunction with the
fourth sentence of Section 6(2), of the Ordinance that it
is taken back using a system pursuant to subsection 3.
Germany has further indicated in this connection that a
self-manager who has not met his recovery quota is
required to participate in a Section 6(3) system with the
amount of packaging that is necessary in order to meet
the quota.

savings among manufacturers and in the distributive
trades (11).

III. THE COLLECTION AND RECOVERY SYSTEM OPERATED
BY DSD

(24)

(25)

For transport packaging and secondary packaging there
are similar take-back obligations. However, there is no
possibility of release from these obligations by way of
participation in a system. Nor are there any take-back
and quota requirements. Distributors who offer goods in
secondary packaging are obliged to remove it when
handing goods over to final consumers or to make
available at
sale facilities where final
consumers can return the secondary packaging free of
charge. If the final consumer leaves the goods in their
secondary packaging, it is treated as sales packaging for
the purposes of the Packaging Ordinance.

the point of

In response to questions put by the Commission,
Germany declared back in 1993 that Section 6(3) of the
Packaging Ordinance would no be
interpreted as
meaning that the establishment of only one system was
the
possible.
Packaging Ordinance
sales
setting-up of additional disposal
packaging. It was not the legislator’s intention that only
one system should be created in Germany or in each
Land.

allowed
for

systems

The

(27) DSD is

the Packaging Ordinance. At

the only undertaking in Germany which
operates an extensive system for the collection and
recovery of sales packaging within the meaning of
Section 6(3) of
the
beginning of 1993, DSD was
recognised by all
competent authorities in the German L(cid:228)nder. The system
has been in operation since 1992 and has been fully
operational since 1993. It is called a (cid:145)dual(cid:146) system as the
collection and recovery of packaging is effected outside
the public waste disposal system and is operated by a
private undertaking.

(28)

Besides DSD there are a few other undertakings which
organise the collection and recovery of sales packaging.
However, these undertakings are not extensive systems
within the meaning of Section 6(3) of the Packaging
Ordinance. They operate as a third undertaking within
the meaning of Section 6(1) and (2) read in conjunction
with Section 11 of the Packaging Ordinance. In other
words, they fulfil directly the take-back obligations of
manufacturers or distributors of sales packaging. A large
number of other undertakings collect and recover
transport packaging.

(29) DSD is financed by fees from undertakings belonging to
the system. By this means, the undertaking acquires the
right, against payment of a fee, to use the Green Dot
trade mark on its sales packaging and, as an actual
service, exemption from the obligation to take back
such packaging.

(26) According to the explanatory memorandum to the
amended version of the Packaging Ordinance, one of its
basic aims is to enhance competition. This is to be
achieved,
inter alia, by henceforth putting collection,
sorting and recovery services out to competitive tender
and by selling packaging intended for recovery under
competitive conditions. Moreover, the costs associated
with the collection, sorting and recovery or disposal of
each packaging material are to be published. The
explanatory memorandum also states that competition
between several
(cid:145)dual(cid:146) systems is to be facilitated. The
recycling requirements are now to be expressed in terms
of
into the system, which will
make it very much easier to set up competing systems.
Greater competition should create the potential for cost

the volumes brought

(30) DSD’s turnover was DEM 4,2 billion in 1998, DEM 3,9
million in 1999 and DEM 4,0 billion in 2000. DSD
collected some 5,6 million tonnes of sales packaging in
1998. Some 17 000 firms are currently members of the
system. It is estimated that a Trade Mark Agreement has
been concluded for some 70 % of all sales packaging
put into circulation in Germany. The following table
shows the amount of packaging collected by DSD as a
proportion of the total volume of packaging over the
period 1995 to 1998:

(11) See the explanatory memorandum to the amended version of the
Packaging Ordinance, ref. BT-Drucksache 13/10943, pp. 19 to 22.

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1995

1996

1997

1998

5,06

5,45

5,61

5,60

6,96

6,87

6,85

6,86

7,91

7,81

7,81

7,85

63,97 % 69,78 % 71,83 % 71,34 %

72,70 % 79,33 % 81,90 % 81,63 %

Used sales packaging
collected by DSD (*)
(million tonnes)

Consumption of sales
packaging by private
final consumers
(million tonnes)

Total consumption of
sales packaging
(million tonnes)

Percentage of total
sales packaging
consumption covered
by DSD

Percentage of sales
packaging consump-
tion by final
consumers covered
by DSD

(*) All estimates of the consumption of sales packaging were prepared
by GVM (Gesellschaft f(cid:252)r Verpackungsmarktforschung Wiesbaden)
(see in particular the packaging recycling statement of March 1999).
Figures for the used sales packaging covered by DSD were supplied
by DSD.

is

receptacles used for collection are the property of the
collector (12). Sorting the collected material
the
responsibility of
the collector. Usually the sorting is
done by specialised undertakings. The collector takes all
packaging put into the containers, regardless of whether
or not it bears the Green Dot mark. Other objects put
into the containers will also be recovered if they are
suitable or will be sorted as waste. Together with sales
packaging made of paper and board collectors usually
also collect old printed matter
and
magazines). This makes up the larger part (about 75 %)
of
the paper and board collected. The collection of
printed matter is not part of the DSD system and is not
paid for by DSD.

(newspapers

industries

producing

(33) Once the material has been sorted it is conveyed to a
recovery plant either directly by the collector or with
the help of third parties, or handed over to so-called
guarantee companies. These guarantee companies have
given DSD an assurance that they will recover the used
packaging. The guarantee companies are organised by
the
packaging
materials, or else are undertakings specially created for
the purpose of marketing and recovering the collected
materials. The quotas imposed must be recycled. Any
additional volumes are to be recovered by other
technically
processes
and
If no form of recovery is
economically reasonable.
economically
available which
in a
reasonable,
manner considered environmentally sound.

these volumes may be disposed of

technically

wherever

possible

relevant

end

the

is

(31) DSD does not perform the task of collection itself but
employs local (public or private) collecting companies.
DSD has concluded so-called Service Agreements with
those undertakings. There are 546 collection districts.
Some collectors are DSD contractors for more than one
district. DSD has concluded agreements with 537
the collectors are in turn
collectors in all. Some of
integrated into larger groups of companies. Under the
Service Agreement, the collector has the exclusive task
of collecting and sorting used sales packaging in a
certain district. The system covers private households
and certain business enterprises. The collector does not
necessarily collect and sort all packaging himself,
subcontractors often being used for the collection and
sorting of certain materials.

(34)

(35)

The system operated by DSD does not collect all sales
packaging within the meaning of
the Packaging
Ordinance but only that arising in private households
and comparable sources of waste generation. Transport
packaging is not collected. This restriction of the range
of DSD’s activities has been ordered by the Federal
Cartel Office. The Office has objected several times to
attempts by DSD to extend the range of its activities.

to start
In October 1992 DSD announced plans
collecting sales packaging which ends up at
large
enterprises and industrial installations. After the Federal
Cartel Office had objected that this would lead to the
exclusion from the market of those collectors which are
not DSD contractors, the project was abandoned. The
Federal Cartel Office expressed the view in this case that
the individual L(cid:228)nder decisions which obliged DSD to
engage in the behaviour in question could not prevent
the Office from stopping these activities. In a settlement

(32)

The system established by DSD collects used sales
packaging made from all kinds of materials. The
packaging is deposited either in containers placed close
to private households or in plastic bags or bins which
have been distributed to individual households. The

(12) Confirmed by DSD in its

reply of 5 July 1995 to the

Commission’s request for information.

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as

for

private

of the case, it was agreed that DSD may collect from
the following premises on the same pattern (in terms of
restaurants,
intervals)
households:
educational
canteens, hospitals, government offices,
establishments, barracks, offices of
liberal professions
and craft enterprises, excluding printers and other
paper-using enterprises, which have containers not
larger than 1 100 litres for each material.

(36)

In a second case the Federal Cartel Office issued a
prohibition order on 24 June 1993 against a project
whereby DSD extended its range of activities to sales
packaging which is not sold in retail outlets and to
transport packaging. The subject of the order was DSD’s
plan to collect, via a subsidiary, sales packaging and
transport packaging made of paper and board or plastic
accumulating
industrial
installations. The Federal Cartel Office saw the bundling
of the demand for collection services as a restraint of
competition within the meaning of Section 1 of the
German Law prohibiting Restraints of Competition.
DSD has not appealed against the order.

commercial

large

and

at

on the part of
they would stock only
packaging carrying the Green Dot. There is no such
clause in the version notified.

traders that

(39)

The Constitution states that the object of the company
is
the organisation and operation of a dual waste
disposal system through measures for the avoidance of
waste and especially packaging waste, the collection and
sorting of secondary raw materials, and the raising of
resources. A shareholders’
the necessary
resolution of 19 October 1992 replaced the term (cid:145)sales
packaging(cid:146) which had originally been used by the term
(cid:145)packaging(cid:146).

financial

undertakings.

1998 DSD had

(40) Membership of the company is open to all German and
552
In
foreign
shareholders. The
in the
shareholders
distributive trades, bottlers and packers, manufacturers
of packaging and suppliers of packaging material. Waste
disposal firms, however, lent DSD more than DEM 700
million when DSD experienced a financial crisis in
1993, and some of this has since been converted into
sleeping partners’ holdings.

firms

are

IV. THE AGREEMENTS

(37)

This Decision is concerned with DSD’s Constitution or
Statutes, with the
standard agreement with waste
disposal firms in its original form and in the form given
it by the first, second, third and fourth amendments,
and with the agreements concluded with guarantee
companies. The agreements have been amended several
times in the course of this proceeding.

(41)

(42)

1. THE CONSTITUTION

(38) DSD was set up on 28 September 1990. In 1997 it was
converted into public limited company form under the
name Der Gr(cid:252)ne Punkt (cid:151) Duales System Deutschland
Aktiengesellschaft. The preamble to the Constitution or
Statutes (Satzung) of the company states that traders,
bottlers and packers, manufacturers of packaging and
suppliers of packaging material have decided to set up a
privately organised take-back system in which used sales
packaging is collected outside the public waste disposal
system from points in the vicinity of households. This
(cid:145)dual(cid:146) system consists of several inseparable components:
the establishment of a collection system reaching the
final consumer, guarantees of acceptance and recovery
and contracts for recovery, the marking of all packaging
within the system with the Green Dot trade mark, and
the financing of the system by means of a fee charged
for the use of the Green Dot trade mark. The preamble
to the Constitution originally included an undertaking

is

that

there

The Constitution provides
to be a
supervisory board composed of an equal number of
representatives of the distributive trades, bottlers and
packers, and manufacturers of packaging and suppliers
of packaging material. The present board is made up of
three
three
representatives of waste disposal firms.

representatives

group

each

and

of

2. THE SERVICE AGREEMENT

The relationship between DSD and the collectors is
governed by a standard agreement, the Agreement on
the Establishment and Operation of a System for the
Collection and Sorting of Used Sales Packaging, known
as the Service Agreement (Leistungsvertrag). Since it was
originally notified the agreement has been amended
third and fourth
several
Service
amendments. With
Agreements were concluded for the first time between
January 1992 and January 1993. Not all collectors have
agreed to all the amendments made to the Agreement,
so that in some cases the version in force is an earlier
one.

times, by the first, second,

few exceptions,

a

(43)

In January 2000 there were 537 Service Agreements
between DSD and collectors, of which 502 incorporated
the fourth amendment, 10 were as amended by the
third amendment only, six were as amended by the
second amendment, 18 were as amended by the first
amendment, and one was in the form of the original
Agreement.

(44)

Section 1 of the Service Agreement provides that the
collector has
setting up and
operating a system of the kind defined in Section 6(3)

the exclusive task of

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of the Packaging Ordinance in a designated district. Any
further functions which DSD takes on as a result of
changes in the Packaging Ordinance, or the amendment
or enactment of other legislation, are likewise entrusted
by DSD exclusively to the collector as part of
the
package of activities for the designated district. Point
2(1) of the third amendment, which was left intact by
the fourth amendment, states that the parties agree that
all sales packaging left at the collection points belonging
to DSD and covered by the system is to be collected
and where necessary sorted and brought for recovery
only in accordance with the Agreement. Collection must
take place at or in the vicinity of the final consumer’s
home; the collector is free to determine the detailed
arrangements.
through
subcontractors. However, a provision introduced by the
third amendment provides that the arrangements made
by collectors are to be replaced by a system of bins
installed directly at households by 31 December 1999,
except in the case of glass.

collector may

The

act

(45)

(46)

(47)

(48)

The Service Agreement provides that the collector takes
ownership and possession of the used sales packaging at
the time of collection or at the time when the final
consumer places it in a container used for collection.
DSD never acquires ownership of the reusable materials
recovered or to be recovered.

For each class of material DSD undertakes to conclude
agreements with
(guarantee
companies), who will ensure recovery on a long-term
basis.

guarantors

suitable

In comments sent

the
The Service Agreement originally provided that
the collected
collector was not entitled to market
materials himself. He was to pass them free of charge to
guarantors designated by DSD.
to
DSD the Commission objected to this (cid:145)zero interface(cid:146)
principle, on the ground that it infringed Article 81(1)(a)
of the EC Treaty. Competition was restricted because
collectors were restricted in their relations with third
parties, and although they were owners of the materials
were prevented from exploiting them commercially
themselves. Following talks with the Commission DSD
put an end to the zero interface system.

The Agreement now provides that from 1 January 1996
the collector has a choice between marketing glass,
paper and board, tinplate and aluminium alone (which
is known as self-marketing) or together with a guarantee
company (modified self-marketing), or continuing to
pass the materials to a guarantee company (guarantor
marketing). The collector’s choice binds him until the
expiry of
the Service Contract. He may indicate a
separate choice for separate waste fractions. But plastics
and composite packaging (drinks cartons and other
composite packaging) must be passed on to a guarantor.

risk. If the collector defaults, DSD is entitled to organise
collection either itself or through a third party. The
collector has to give DSD security, the amount of which
is determined on the basis of
the potential costs of
recovery. DSD can make use of the security only in the
event of the insolvency of the collector. If the collector
opts
for modified self-marketing, he is entitled to
recover the materials jointly with a guarantor. The
collector and the guarantor are jointly and severally
liable for the performance of the duty to recover the
material. If the collector opts for guarantor marketing,
he must place the collected and sorted material at the
disposal of a guarantor designated by DSD.

event of

Even in the
self-marketing or modified
self-marketing, the collector has to designate a guarantor
to coordinate a volume flow record. The collector has to
conclude an agreement with the guarantor regarding the
this record, and the agreement must be
keeping of
approved by DSD. The collector must
supply the
guarantor with uniform and complete documentation
showing the progress of the waste from collection to
the recovery of the reusable materials. Either party may
end the agreement at
the end of a calendar year,
following six months’ notice.

For collecting and sorting each packaging material the
collector receives a payment, which is generally based
on weight. The payment is calculated taking account of
the costs of disposing of waste that has to be removed
from the materials collected, and of the overall success
rate, which is measured by the volume collected in
relation to the number of inhabitants. The payment is
adjusted by means of a price variation clause. The
Service Contract originally included a clause stating that
a collector who opted for self-marketing or modified
self-marketing was to pay a flat-rate sum of DEM 1,25
per head of population per
in
consideration of the revenue he earned from recovery;
but this clause has been removed,
in fulfilment of a
commitment given by DSD to the Commission (see
recital 70).

to DSD,

year

Following the fourth amendment, the notified Service
Agreement was to run until the end of 2004 or 2007;
under the third amendment, it was to run until the end
of 2003 or, if an option to extend was exercised, until
the end of 2005. The older variants usually provided
that the Agreement could be terminated for the first
time at the end of the year 2002 or 2003, and could be
extended for another five years. On the basis of the
fourth amendment
the total
in any event,
duration of the Service Agreements was as a rule about
15 years.

therefore,

(50)

(51)

(52)

(49)

If the collector opts for self-marketing, he has the right
and the obligation to recover and market the material
collected in his own name and for his own account and

(53)

In comments made to the parties notifying the Service
Agreements the Commission objected to their duration.

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The collectors argued that long-term agreements were
necessary primarily in order to enable them to plan and
invest securely so as to be able to implement
the
Agreement. The investment needed was essentially in
collection and transport vehicles, collection bins and
containers, and sorting facilities and equipment for used
sales packaging. In terms of volume, collectors had to
invest particularly heavily in sorting plants using
separation equipment which was very costly owing to
the technology required. There are now about 400
sorting plants, most of which were built in the years
1992 to 1995. According to information supplied by
the collectors and the BDE,
the collectors concerned
have invested or are in the process of investing some
DEM 10 billion altogether over the lifetime of
the
Agreement. Long-term agreements, it was argued, were
indispensable, especially in order
to ensure secure
planning and investment so that collectors could recoup
this investment, which was exceptional in the industry.
the collectors’ only
In the initial
customer for used sales packaging collection services,
and collectors could afford to undertake the necessary
investment only on the basis of clear and reliable
planning and amortisation.

stages DSD was

(54)

(55)

in respect of

the
It considered that

In order to establish whether such long-term exclusive
agreements were indeed necessary in order to recoup
the investment required, the Commission made various
measurements.
It conducted an industry-wide survey
investigating the extent, the scale and the date of the
investment carried out or still to be carried out by the
collectors,
relatively
especially
for
capital-intensive sorting plants.
purposes of the enquiry the 24 collectors who sought
individual exemption of their Service Agreements could
be regarded as sufficiently representative of the industry,
and
individual
them to a
investigation looking at the conditions for recovery of
the
an economic
this
investment and profitability study was conducted into
the data and forecasts submitted by these collectors
to be
regarding the investment carried out or still
carried out and the turnovers and costs achieved or
forecast during the lifetime of the agreement, account
being taken of any alternative uses and residual values.

investment.

subjected

purpose

detailed

For

it

The individual investigation of the collectors studied in
detail led to the conclusion that an exclusive agreement
running until the end of 2007 was not indispensable in
order to recoup the investment actually being carried
out by the collectors. The results suggested rather that if
the Service Agreements were to run until the end of
2003 collectors would have sufficient time to achieve
an economically
their
investment. The Commission informed the applicants of

redemption of

satisfactory

this finding, and the applicants then set a termination
date of 31 December 2003 for the Agreements in the
event that the Commission ultimately exempted them.
This change was made between August 1999 and
January 2000.

(56)

tie the collectors
The Service Agreements do not
exclusively to DSD;
they leave them free to supply
similar services to other customers. DSD has also given
the Commission the commitment set out in recital 71.

to

had

to DSD they

(57) DSD initially claimed that where third parties wished to
the collection facilities of collectors
make use of
have DSD’s
contracted
the subject of a complaint
authorisation. This was
lodged under Article 82 of
the EC Treaty by the
competing Vereinigung f(cid:252)r Wertstoffrecycling mbH
(Association for the Recycling of Reusable Materials
(VfW)), and of an action brought before the Cologne
Regional Court. DSD had argued that VfW could not
without DSD’s consent make use of collection facilities
for reusable materials set up as part of the DSD system,
or have them used by VfW’s own collectors. The
Commission indicated that Article 82 of the EC Treaty
might be applicable.

(58) After the Commission put forward its view, DSD stated
that it would not seek to restrict use in this way either
in the particular case of VfW or in comparable cases; it
has given the Commission a commitment to that effect,
which is set out in recital 72.

(59) Annex 1 to the third amendment, which was left intact
by the fourth amendment, lists collection points which
are to be served in addition to private households. DSD
states that the enumeration of these collection points is
not part of the notification.

3. THE GUARANTEE AGREEMENTS

(60)

The Guarantee Agreement governs the legal relations
between DSD and the undertakings that accept and
the collected sales packaging. These firms
recover
guarantee the recovery of the collected materials on a
long-term basis, irrespective of market conditions at any
one time. In the beginning guarantees of recovery were
given for
specific waste fractions by the producer
industries; these guarantees in some cases tended to be
theoretical. DSD subsequently concluded agreements
with individual guarantors, the (cid:145)guarantee companies(cid:146).
three guarantee
For paper
tinplate and
companies; and for glass, aluminium,
composite cartons there is one each.

and board there

are

(61)

The Guarantee Agreements initially provided that DSD
was to require the collectors to deliver these materials to

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clause mirrored the

the guarantee companies free of charge, which was
known as the (cid:145)zero interface(cid:146) (Schnittstelle Null) principle.
This
Service
Agreements already referred to. After the Commission
objected to these arrangements
the Guarantee
terminated or amended to
Agreements were either
match
Service
provisions
Agreements (see recital 47).

amended

in the

clause

too,

the

the

in

(62) At present

there are Guarantee Agreements for the
following materials, which are largely identical
in
substance. For paper and board, there are agreements
with Interseroh AG; with VfW; with Gesellschaft
f(cid:252)r
PapierRecycling (GespaRec); with Deutsche Gesellschaft
f(cid:252)r Wertstoffverwertung mbH (DGW); with Papier- und
Kunststoffverwertungs GmbH (IPK); and with Recostra
SA. For glass there is an agreement with Gesellschaft f(cid:252)r
Glasrecycling und Abfallvermeidung mbH (GGA). For
aluminium there are agreements with Interseroh AG;
with DGW; with IPK; with VfW; and with Deutsche
Aluminium Verpackung Recycling GmbH (DAVR). For
tinplate there are agreements with Interseroh AG; with
Rasselstein Hoesch GmbH; with DGW; with IPK; with
VfW; with Entsorgungs- und Beratungsgesellschaft f(cid:252)r
die deutsche Recyclingwirtschaft mbH & Co KG (GEBR);
and with Thyssen Sonnenberg GmbH. For composite
drinks cartons there is an agreement with Recarton
GmbH. For other composite packaging there is an
agreement with
The Guarantee
Interseroh AG.
Agreements generally run until 31 December 2003.

(63) Where a collector has opted for marketing through a
guarantor, the guarantee company is obliged to accept
all sorted sales packaging from that collector which
meets certain sorting quality requirements. In modified
organises
guarantee
self-marketing,
marketing and recovery jointly with the collector; the
guarantee company is liable alongside the collector for
proper recovery.

company

the

(64)

(65)

(66)

The guarantee company is obliged to supply evidence of
the recovery of the materials, and to draw up a volume
flow record every year. The guarantee company must
draw up such records even for collectors who market
their own materials. It may charge for this service.

the process of notification between
To ensure that
collectors
in
competition terms, DSD has given the commitments in
recitals 73 and 75.

and guarantee

is neutral

companies

The Guarantee Agreements
contain no exclusivity
clauses. DSD is free to conclude agreements with several
guarantee companies for the same waste fraction. DSD
has stated that it is generally prepared to conclude a
guarantee agreement with any undertaking that meets
the
a
commitment to that effect, which is set out in recital
74.

requirements. DSD has

relevant

given

(67) DSD did not notify an agreement regarding the recovery
concluded with Deutsche
packaging
plastic
of
Gesellschaft
f(cid:252)r Kunststoffrecycling GmbH (DKR)
because DKR is a company associated with DSD. DSD
holds 49,6 % of the shares, while the remaining 50,4 %
is owned by a number of chemicals manufacturers
acting through a holding company.

(68)

The agreements setting up guarantee companies are
outside the scope of this Decision.

V. COMMITMENTS GIVEN BY DSD

(69) DSD has submitted a number of commitments to the
Commission in connection with the agreements which
are the subject of this proceeding.

(a) The Service Agreement

(70) DSD undertakes no later than 30 September 1997 to
amend the clauses in contracts with collectors on the
marketing of sorted materials (second sentence of point
3.4.5 of the third amendment of the Service Agreement)
so that collectors who take full advantage of
the
marketing right are not treated more favourably than
collectors who exercise this possibility only in respect of
a part of the materials available for marketing.

(71) DSD will not oblige collectors to work exclusively for
DSD. DSD further undertakes to refrain from obliging
collectors to use containers or other facilities for the
collection of used sales packaging exclusively for the
performance of the Service Agreement. This will not
the collection containers or
apply where the use of
other facilities by third parties is incompatible with the
permission given by the public authorities, or where the
Packaging Ordinance or other legislation determines
otherwise, or where for other reasons it would be
unreasonable to permit them to be used (for example in
the case of dangerous substances or contaminants). The
use of collection containers and other facilities by third
parties may be allowed for when settling accounts with
the collector.

(72) DSD is prepared to refrain from seeking to restrict use
the
in the manner referred to in the judgment of
Cologne Regional Court of 18 March 1997 in particular
case of VfW and in comparable cases. DSD may
however pursue claims for information and settlement
against collectors in a contractual
relationship with
DSD.

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(b) The Guarantee Agreements

(78)

(73)

for

are

records

Knowledge acquired by DSD in preparing the records of
deliveries
recycling required by the Packaging
Ordinance may not be used for purposes of market
information. Where necessary,
to be
rendered anonymous in an appropriate fashion. For
sorted materials in the glass, tinplate, aluminium and
paper and board fractions DSD may not ask for further
evidence of delivery for recycling than proof of delivery
to an undertaking authorised by national law to recover
or to trade in these materials within the European
Community or the EEA, unless there is reasonable doubt
the
of proper compliance with the requirements of
Packaging Ordinance.

(74) DSD is in principle prepared to accept anyone who
satisfies the relevant requirements as a guarantor for a
waste fraction.

(75) DSD is in principle prepared to render references to
undertakings
anonymous,
provided this is accepted by the L(cid:228)nder in their capacity
as exempting authorities.

flow records

in volume

VI. OBSERVATIONS SUBMITTED BY THIRD PARTIES

(76)

Following the publication of a notice under Article
19(3) of Regulation No 17 and Article 3 of Protocol No
21 to the EEA Agreement, the Commission received
observations
The
observations were concerned mainly with the Service
Agreement and the Trade Mark Agreement. The Trade
Mark Agreement is outside the scope of this Decision.

from 13

interested

parties.

(77) On the Service Agreement,

recital 72).

the planned

it was submitted that

this commitment
a
Some
duration of

in
practice, and contrary to the commitment referred to in
recital 71, DSD did not allow third parties unimpeded
access to the collection facilities of the parties to the
Service Agreement. This led the Commission to explain
to DSD once
its understanding of
supplementary
again, where upon DSD gave
observations
commitment
(see
concerned
Service
the
Agreements; these strengthened the Commission in its
view that the doubts it had already expressed to DSD
regarding the indispensability of the planned duration of
the Agreements ought to be renewed, and led to an
adjustment to the duration of the Agreements. Some
observations also suggested that when the Service
be
Agreements
awarded by competitive tender. As has been explained,
the amended Packaging Ordinance makes provision for
this. Other observations argued that the (cid:145)zero interface(cid:146)
in the Service Agreements
should be removed for
plastics and plastic composites too.

fresh agreements

expired

should

has

Commission

The
the
observations submitted to it by interested parties, and
has addressed them in this Decision wherever necessary
and appropriate.

considered

carefully

B. LEGAL ASSESSMENT

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

(79) All agreements between undertakings, decisions by
associations of undertakings and concerted practices
trade between Member States and
which may affect
which have as their object or effect
the prevention,
restriction or distortion of competition within the
common market are prohibited as incompatible with
the common market.

1. AGREEMENTS BETWEEN UNDERTAKINGS

(80) DSD has operated under its Constitution (known in
German as the Gesellschaftsvertrag, and from 1997, when
DSD became a public limited company, as the Satzung).
The preamble to the present Constitution states that
traders, bottlers and packers, and manufacturers of
packaging and suppliers of packaging material have
decided to set up an organisation to act as a vehicle for
the establishment of a dual collection system. According
to the Constitution membership of the company is open
foreign undertaking. DSD’s
to any
Constitution
between
agreement
undertakings.

domestic or

therefore

an

is

(81) With a view to the provision of services, DSD itself
concludes Service Agreements with collectors
and
Guarantee Agreements with guarantee companies. The
Service Agreement which DSD concludes with collectors
and the Guarantee Agreement which DSD concludes
companies are likewise agreements
with guarantee
between undertakings.

2. RESTRICTION OF COMPETITION

2.1. Relevant markets

(82)

In what follows the markets relevant to an assessment
this
of
the agreements which are the subject of
proceeding are defined both in terms of
the service
involved and in terms of geographic area.

2.1.1. The relevant product market

(83)

and/or

relevant product market

those
The
products
as
interchangeable or substitutable by the consumer by
reason of
their prices and their
intended use.

services which are

their characteristics,

all
regarded

comprises

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(84)

The object of DSD is to organise and operate what is
take-back system for used
termed a dual private
packaging. The agreements on which the DSD system is
based produce economic effects at various levels at
which value added is created. It will be shown here that
the Service
for
Agreement and the Guarantee Agreement under Article
81(1)
relevant
markets.

there are separate and independent

the assessment of

the Constitution,

(88)

is

The market in the collection and sorting of household
from the
a market
packaging waste
collection from households of
items other than sales
packaging,
to say essentially the traditional
household and residual waste collection, and likewise
separate from collection from non-household-related
sources in industry and large commercial enterprises.

separate

that

is

2.1.1.1. The market in the organisation of the take-back and

recovery of household packaging waste

D i s t i n c t i o n f r o m h o u s e h o l d a n d r e s i d u a l
w a s t e

(85)

The Commission considered the definition of
the
relevant market in the organisation of the take-back and
recovery of used sales packaging collected from private
final consumers in Decision 2001/463/EC. For purposes
of this Decision, therefore, it will be sufficient to refer to
the discussion there.

(86) Nor need any final ruling be given here as to which of
the two conceivable market definitions contained in that
Decision should be applied. As will be explained below,
the agreements under consideration do not
restrict
competition within the meaning of Article 81(1) of the
Treaty in any event,
regardless of which market
definition is applied. It is not necessary to decide the
precise definition of the market in the organisation of
the take-back and recovery of used sales packaging
collected from private
(hereinafter
final
referred to as (cid:145)household packaging waste(cid:146)) in Germany.

consumers

2.1.1.2. The market in the collection and sorting of

household packaging waste

(87)

In the case of the collectors who collect, transport and
sort used sales packaging on behalf of DSD, the relevant
market is the market in the collection and sorting of
household packaging waste. For the present at any rate
this forms one market. Collecting sales packaging and
sorting it according to its use are two different activities,
and the infrastructure needed is different too. They have
to be classed together, however, mainly because the
market is shaped by the demand exerted by DSD, and
because DSD has in the past purchased both services
together. Demand on this market originates with
exemption systems and with the manufacturers and
distributors bound by the Packaging Ordinance and the
firms responsible for organisation under Section 11 of
If Germany’s view prevails
the Packaging Ordinance.
(see recital 15), self-management arrangements will exert
demand only on the margin of this market, particularly
in respect of collection points deemed equivalent
to
private households, or in the case of delivery to the final
consumer.

(89) With the enactment of

traditional

the Packaging Ordinance the
collection of used sales packaging from households
(including small businesses which were comparable in
terms of the logistics of collection) was separated from
and
the
responsibility
sales
packaging collection was taken away from the public
waste management system. Collecting firms now had
the opportunity to collect and sort used packaging for
their own account; until then they had done so only as
agents of public authorities and under their supervision.

refuse
organisation of

household
the

collection,
this

for

of

sorting

household

packaging waste

through the sorting of

(90) Household and residual waste continued to be collected
under the responsibility of the local authorities who had
an obligation to remove it. The market in the collection
is
and
distinguished from that market by a substantially
broader service profile. Unlike the traditional household
and residual waste collection, this operation itself adds
value,
sales packaging into
specific
different materials
instructions and the delivery of the sorted materials for
further recycling. A collector who takes on the task of
sorting used packaging usually has
to undertake
extensive investment in order to set up proper sorting
facilities. The investment is demand-specific, and cannot
rapidly be used for other types of collection. Collection
services for sales packaging and collection services for
the remaining household and residual waste are not
functional substitutes in the short term.

accordance with

in

D i s t i n c t i o n f r o m c o l l e c t i o n f r o m i n d u s t r y
a n d l a r g e c o m m e r c i a l e n t e r p r i s e s

(91)

The market in the collection and sorting of household
packaging waste is distinguished from collection from

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(92)

(93)

(94)

enterprises

especially by

non-household collection points in industry and large
the different
commercial
logistical requirements of collection, with regard to such
things as the number of collection points that have to
be cleared, the average volume to be collected from
each point, the containers required, or the intensity of
the collection schedule.

enterprises

commercial

the
In industry and large
number of collection points is relatively limited, and
they can be cleared separately by different collectors,
because the volume to be collected is fairly large. In the
case of final consumers, on the other hand, waste has to
from all households in the local
be collected direct
authority’s area, apart from a few cases where it may be
brought by the public to a single collection centre.
Collection from final consumers therefore displays clear
network effects, i.e. effects of both scale and scope.

for

points

logistical

collection

These specific supply conditions have the consequence
that
at
reasons
households, if they are to be served at optimum cost,
have usually to be served by only a limited number of
collectors. A further and decisive factor is that as a rule
only one container can be placed at each collection
point for each type of material (such as glass, paper or
for reasons of space and the
lightweight packaging),
established habits of
final consumers. The specific
supply conditions are also the main reason why there is
usually only one household refuse or reusable materials
collection from households, which is carried out by just
one collector.

But this does not apply to non-household collections
from industry and large commercial enterprises. Here
firms conclude individual waste-disposal contracts with
collectors. From their point of view it is of no great
importance whether what has to be collected is sales
Indeed there is
packaging, other materials or waste.
to look for
some tendency among big companies
comprehensive waste disposal arrangements
the
for
whole company, which may very well be operating in
several places. Even before the Packaging Ordinance
entered into force, therefore, waste collection from large
commercial and industrial firms was already organised
on competitive
collection from
households it presents no special logistical difficulties. In
addition, the sales packaging to be collected from final
consumers differs greatly from that which accumulates

and unlike

lines,

in industry and large commercial enterprises in terms of
the materials, reusable or otherwise, which it contains.
Tinplate, aluminium and plastic composites are collected
almost entirely from private households, where they
usually appear in the lightweight packaging fraction and
have to be sorted subsequently. Sorting takes place in
relatively capital-intensive sorting plants using technical
the sorting of
facilities which are not needed for
packaging
commercial
from industry
enterprises.

large

and

(95)

Thus collection services for household packaging waste
and for sales packaging which accumulates in industry
and large commercial enterprises are not
functional
substitutes either.

C o n c l u s i o n

(96)

is

separate

The Commission is satisfied that the collection services
which DSD obtains from collectors constitute a market
in the collection and sorting of household packaging
from traditional
waste. This market
household and residual waste disposal
and from
collection from commercial and industrial firms. There
is no need to settle here whether the relevant market
could be further differentiated by individual material
fractions, such as glass or paper and board, or into its
component value-adding functions, such as collection
itself, transport and sorting, as this would not change
the assessment under Article 81(1).

2.1.1.3. Markets in recovery services and secondary raw

materials

(97) DSD plays a role on the markets in recovery services
and secondary raw materials with respect to glass, paper
and board, tinplate, aluminium, plastics, and composite
drinks cartons and other composite packaging; it does
reusable materials
so by organising the delivery of
recovery by guarantee
covered by the system for
companies, in accordance with the requirements of the
Packaging Ordinance,
long-term basis
on
independently of the market conditions of the moment.
The guarantee companies give DSD the assurance that
the reusable materials prepared by the collectors will be
recovered in accordance with the Packaging Ordinance.

a

(98)

The Commission takes the view that the secondary raw
materials which are prepared for recovery in the DSD
system divide into separate markets in the separate
reusable fractions, some of which, such as those in glass
or paper, existed before the Packaging Ordinance was
enacted and DSD was set up.

(99) However, the definition of the relevant product markets
in recovery services and secondary raw materials need
not be settled here, because even if a narrower market

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In particular,

definition is accepted the assessment of the agreements
on any of these markets would not change the overall
assessment for competition purposes under Article 81(1)
there is no need to settle
(see below).
whether the mere organisation of
the guarantee of
recovery of a specific material by a guarantee company
is a product market separate from the downstream
recovery of that material, or from the offer for sale of
secondary raw materials.

2.1.2. Relevant geographic market

(100) The relevant geographic market comprises the area in
which the undertakings concerned are involved in the
supply of products or services, in which the conditions
of competition are sufficiently homogeneous and which
can be distinguished from neighbouring areas because
the conditions of competition are appreciably different
in those areas.

(101) The objective supply and demand conditions on the
relevant markets covered by the DSD system continue
to exhibit considerable variations between Member
States. This is due not least to the fact that this is a
sector which used to be, and in some areas still is, to a
large extent regulated and organised by the State.

it

is still

(102) Although the waste-management sector is becoming
the case that
increasingly internationalised,
supply and demand continue to be organised at national
level, in particular as regards waste-management services
for used sales packaging. One major factor is that the
legal provisions that regulate the disposal of packaging
are still very different from one country to another. This
is true not only of the statutory requirements governing
extensive take-back and exemption systems and the
collection, sorting and recovery quotas to be met, but
also of the commercial freedom of action which private
undertakings enjoy, e.g. regarding the collection and
sorting
own
packaging
responsibility. This is one of
the reasons why the
take-back and exemption system operated by DSD is
restricted to Germany, and the Service Agreements
needed to put
the system into practice have been
concluded entirely on a domestic basis.

under

their

sales

of

packaging waste, the relevant geographic market is that
the Federal Republic of Germany. As far as the
of
markets
raw
materials are
it will not be
necessary to define the geographic market.

concerned, however,

and secondary

in recovery

services

2.2. Restriction of competition by DSD’s Constitution

on the market in the organisation of the
take-back and recovery of household packaging
waste

the

in the organisation of

(104) At the present time DSD is the only undertaking on the
market
take-back and
recovery of household packaging waste in Germany to
offer an extensive system that provides exemption from
the obligation to take back and recover sales packaging.
DSD is thus the vehicle through which the shareholders
and other undertakings who conclude Trade Mark
Agreements with DSD secure exemption from their
take-back and recovery obligation.

(105) The setting up of

the company along the lines laid
down in DSD’s Constitution was
therefore a vital
condition if participation in an extensive system was to
be offered as a means of securing exemption from a
company’s take-back and recovery obligation; a business
that wishes to secure such exemption can join the
system by concluding a bilateral contract, namely a
Trade Mark Agreement, with DSD.

(106) DSD’s Constitution contains no exclusivity clauses. The
into contracts with
shareholders are free to enter
organisations competing with DSD, or with firms
providing services to DSD. In the original version of the
preamble to the Constitution traders undertook to stock
only packaging that carried the Green Dot trade mark;
but this obligation is no longer present in the version
notified.

(107) Thus the Constitution does not occasion any appreciable
restriction of competition within the meaning of Article
81(1) on the market in the organisation of the take-back
and recovery of household packaging waste. This is why
the question of the precise definition of the market need
not be settled. Nor is it necessary to consider whether
these agreements affect trade between Member States.

(103)

It must be assumed, therefore, that the objective supply
and demand conditions on the relevant markets in this
case differ on a continuing basis from those in other
parts of the common market. Consequently, when the
Community competition rules have to be to applied to
these two product markets within the DSD system,
namely the market in the organisation of the take-back
and recovery of household packaging waste and the
in the collection and sorting of household
market

Conclusion

(108) The Commission concludes that the setting-up of DSD
in accordance with its Constitution does not constitute a
restriction of competition within the meaning of Article
81(1). This does not mean that market activities arising
out of the operation of such a system can never be
caught by Article 81.

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2.3. Restriction of competition on the market in

recovery services and secondary raw materials

(109) DSD plays a role on the markets in recovery services
and secondary raw materials with respect to glass, paper
and board, tinplate, aluminium, plastics, and composite
drinks cartons and other composite packaging, by
organising the recycling of reusable materials from the
sales packaging covered by the system, which is
necessary
to obtain exemption by the
responsible Land authorities. Rules on this aspect are to
be found in both the Service Agreement and the
Guarantee Agreement.

in order

(113) But

the plastic sales packaging and the composite
packaging containing plastics which are collected and
sorted in the DSD system has a market price which is
invariably negative, so that at present these materials
can be recovered in accordance with the Packaging
Ordinance only against payment by DSD. In the past,
indeed, this negative market price has at times meant
that plastics intended for recovery have been steered
into cheaper disposal
in
accordance with the Packaging Ordinance, and as a
result DSD has had to take corrective and monitoring
measures. One of those measures is the maintenance for
the time being of the zero interface for plastics and
composite packaging.

that were not

channels

2.3.1. Restriction of competition by the Service

Contract

(114)

the Commission is

In view of the exceptional circumstances and conditions
surrounding the establishment of a new,
functioning
market in the recovery of sorted plastic and composite
the
packaging,
temporary maintenance of the zero interface for plastics
for the lifetime of the Service Agreements, that is to say
is not a restriction of competition. This
until 2003,
assessment
in
is
accordance with the amended Packaging Ordinance
DSD is to put the contracts for the recovery of plastics
out to competitive tender.

rendered easier by the fact

satisfied that

that

(115) The Service Contract originally included a clause stating
that a collector who opted for
self-marketing or
modified self-marketing was to pay a flat-rate sum of
DEM 1,25 per head of population per year to DSD, in
consideration of the revenue he earned from recovery;
but this clause has been removed,
in fulfilment of a
commitment given by DSD to the Commission (see
recital 70).

(116) The Commission therefore concludes that the relevant
provisions of the Service Agreement do not lead to any
appreciable restriction of competition on the markets in
recovery
raw materials
downstream from the collection and sorting of used
sales packaging, and consequently are not caught by
Article 81(1).

secondary

services

and

2.3.2. Restriction of competition by the Guarantee

Agreements

time,

(110) As explained in recital 47, DSD has abolished the
system of the (cid:145)zero interface(cid:146). There is consequently no
longer any appreciable restriction of competition on the
relevant market in respect of the glass, paper and board,
tinplate and aluminium fractions. For the present,
in
view of the special circumstances that obtain when an
exemption system of this kind is being set up for the
first
the Commission is prepared to allow the
clause requiring collectors to commit themselves to one
or other form of marketing of the materials collected
the Service Agreement. The
until
Commission takes the view, however,
that after the
current Service Agreements expire on 31 December
2003 markets in recovery services and secondary raw
materials will be sufficiently well established, and that
under future agreements it should be possible to opt for
a form of marketing of materials for a substantially
shorter time.

the termination of

and

other

drinks

(111) For plastics and composite packaging containing plastics
(composite
composite
cartons
packing), the Service Agreement continues to prevent
from marketing the sorted materials
the collector
himself. These materials must be passed on to a
guarantee company. Whether or not this exception is
admissible is a question that has to be determined in the
specific circumstances that obtain where a functioning
market is being established in the recovery of plastics
from household packaging waste.

(112) Until the enactment of the Packaging Ordinance and the
setting up of DSD, plastic and composite packaging
accumulating in households, unlike other materials such
as glass or paper, was not collected and recovered
it was collected along with the ordinary
separately;
household waste
Packaging
recital 89). The
Ordinance, on grounds of
environmental policy,
launched the collection and recovery of plastic and
composite packaging, thereby introducing a new area
for business activity.

(see

(117) As explained in recital 61, the acceptance and guarantee
agreements for the various materials originally included
arrangements which corresponded to those in the
Service Agreements
to
imposing
surrender the prepared materials. These arrangements
have been deleted or amended.

requirement

a

(118) The Guarantee Agreements running until

the end of
2003 contain no exclusivity clauses. DSD is therefore
free to conclude agreements with more than one

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guarantee company. DSD has given the Commission a
commitment that it will accept any would-be guarantor
who satisfies the necessary conditions (see recital 74).
The Commission accordingly
any
undertaking that objectively meets the requirements for
guarantors and requests guarantee company status from
DSD will be admitted as a guarantee company within a
reasonable time.

concludes

that

(119) Concern had been expressed that

the process of
notification between collectors and guarantee companies
might not be neutral
in competition terms, and DSD
has sought to dispel any doubt by giving a commitment
that any knowledge it acquires in preparing the records
of deliveries for recycling required by the Packaging
Ordinance will not be used for purposes of market
information; where necessary,
to be
rendered anonymous in an appropriate fashion (see
recital 73). DSD has also agreed to render references to
undertakings
anonymous,
provided this is accepted by the L(cid:228)nder in their capacity
as exempting authorities (see recital 75).

flow records

in volume

records

are

the

(120) The Commission therefore concludes that the relevant
provisions of
do not
guarantee
appreciably restrict competition on the relevant product
market
raw
services
materials, and consequently are not caught by Article
81(1).

in recovery

agreements

secondary

and

2.4. Restriction of competition by the Service

Agreement on the market in the collection and
sorting of household packaging waste

(121) The Packaging Ordinance lays down requirements for
the extensive take-back and exemption systems referred
to in Section 6(3); for the practical implementation of
these requirements DSD has concluded a standard
the
Service Agreement with collectors. Section 1 of
Service Agreement provides that the collector takes sole
responsibility for setting up and operating a system of
the Packaging
the kind defined in Section 6(3) of
Ordinance in a designated district (see recital 44).
In
what follows this exclusivity clause will be examined to
establish whether or not it is compatible with Article
81(1) of the EC Treaty.

(a) The collector enjoys exclusivity

30), this means that other providers of collection and
sorting services for household packaging waste are to a
great extent prevented from offering their services.

(123) By entrusting these services to just one collector in a
designated area, DSD is restricting its own freedom of
action with regard to the purchase of collection services
for used sales packaging. The restriction has the effect
that competing providers of collection and sorting
services for household packaging waste are unable to
offer their services to the leading purchaser of such
services,
is
appreciably restricted in the designated area. The
that even where
restriction is reinforced by the fact
though it would theoretically be possible to collect
different reusable materials separately and independently
of one another (essentially glass, paper and board, and
light packaging), DSD with very few exceptions refrains
from entrusting them to different contractors.

so that competition between collectors

the agreement

(124) The result is that DSD undertakes for the entire lifetime
to purchase collection and sorting
of
this kind exclusively from the appointed
services of
collector
in the designated area in question. This
restricts competition on the market in the collection and
sorting of household packaging waste, since during the
lifetime of
the agreement no other collector can
conclude a Service Agreement with DSD, so that the
excluded collectors are deprived of
the possibility of
doing business with the leading purchaser. This is so
even though the excluded collectors may operate as
subcontractors to a DSD collector for the collection or
sorting of specific reusable materials or waste fractions.

A p p r e c i a b l e r e s t r i c t i o n

(125) The

exclusive

agreement between DSD and the
collectors will be caught by Article 81(1) of the EC
Treaty only if
competition appreciably.
Whether or not the restriction is appreciable will be
determined primarily by the position of the parties to
the agreement on the relevant market and by the
duration of the exclusive obligation.

affects

it

(126) DSD has

concluded standard Service Agreements
including the exclusivity clause described in recital 44
for more than 500 designated areas, and has thus set up
a network for the collection and sorting of household
packaging waste which covers the whole of Germany.
DSD consequently has a network of similar agreements
covering the whole of the relevant geographic market.

(122) DSD undertakes

to purchase collection and sorting
services exclusively from one collector in the designated
area in the lifetime of
the Agreement; given DSD’s
commanding market position as a purchaser (see recital

(127) DSD is at present the only undertaking in Germany
with an extensive take-back system for household
packaging waste, and is therefore the purchaser of

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reference for such collection services throughout
the
country and in any particular designated area. In the
years 1996 to 1998 the obligation to take back and
recover was discharged by joining the DSD system in
respect of about 70 % of the sales packaging put into
circulation in Germany (see recital 30). On the market
under consideration here, that is to say the market in
the collection and sorting of household packaging
waste, DSD accounts for at least 80 % of demand. DSD
is the sole reference purchaser of collection services of
this kind, while the supply side is characterised by a
large number of suppliers, some of them operating only
on a regional basis.

(128) On the supply side, as explained in recital 93,

self-management

it has
also to be borne in mind that primarily for reasons of
spatial organisation and collection logistics it is unlikely
at present
that an additional collection system for
private final consumers will be set up alongside that
already established by DSD, which might otherwise give
the excluded collectors an alternative customer for their
services. Given the infrastructure bottleneck at the point
of collection from households, it is surely more realistic
to suppose that a potentially competing exemption
arrangement would
system or
cooperate with those collectors who already provided
collection services for DSD under a Service Agreement.
There are only a few particular collection points deemed
equivalent to private households, such as hospitals or
canteens, which subject to certain conditions relating to
and types of packaging might
collection logistics
conceivably be able to entrust
the work to other
collectors, which would involve installing additional
containers for the purpose. But the scope which may
remain for collectors to do business in this way is still
of comparatively limited economic importance on the
relevant market.
that any
is unlikely,
appreciable new opportunities for excluded collectors
will arise during the lifetime of the Agreement in the
designated area.

therefore,

It

(129)

the effect of

In an assessment of
these exclusivity
obligations on competition, a decisive factor is their
duration. The exclusivity clause described is contained in
the
Service
Agreements, which now run until the end of 2003.

successive

standard

versions

the

of

at central level, and consequently affects their capacity
to offer their services at all in the long term.

E f f e c t o n t r a d e b e t w e e n M e m b e r S t a t e s

(131) DSD has

concluded Service Agreements with an
exclusivity clause for more than 500 designated areas,
and in this way has set up a countrywide disposal
network for the collection and sorting of household
packaging waste. For the duration of the Agreements
access to the market is rendered difficult for collectors,
especially those from other Member States of
the
European Economic Area, on a long-term basis. The
exclusivity clauses have a strong adverse effect on
foreign collectors’ scope for establishing themselves on
the relevant market. The exclusivity clause in the Service
Agreements may therefore appreciably affect
trade
between Member States.

F i n d i n g

therefore,

(132) Consideration of the exclusivity clause in the Service
Agreement has shown,
that access to the
relevant market by domestic and foreign collectors is
greatly obstructed; this goes a considerable way towards
partitioning off a substantial part of
the common
market. Article 81(1) of
the EC Treaty is therefore
applicable to the exclusivity clause in the Service
Agreement.

(b) Access to the collectors’ facilities

forms

(133) As already explained in recital 93, the infrastructure for
collection in the vicinity of households
a
bottleneck, so that it is especially important in terms of
competition law that competitors with DSD should have
free and unimpeded access to these facilities, and indeed
following publication of a notice under Article 19(3) of
Regulation No 17, objections were put
forward
regarding this aspect on competition grounds; in what
follows, therefore, the Service Agreement is examined in
this light. There would be a restriction of competition
caught by Article 81(1)
the Service
Agreement was so designed that it excluded competitors
with DSD from access to the collection infrastructure.

especially if

(130) Most of the agreements were first concluded in 1992:
the exclusivity arrangement is an unusually long-lasting
one. Its effect is to exclude other service providers who
were not selected as service contractors in the first
round of Service Contracts from offering their services

(134) The Service Agreements do not confer any exclusivity
on DSD, so that collectors are free to offer their services
to competitors with DSD. In the commitment set out in
recital 71, DSD has confirmed that no exclusivity

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Official Journal of the European Communities

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obligation in DSD’s favour will be imposed. In the same
to ask
commitment DSD has also undertaken not
collectors to use containers or other facilities for the
packaging
sorting
collection
of
exclusively
Service
the performance of
Agreement with DSD.

and
for

their

sales

used

(135) Point 2.1 of the third amending agreement,

left intact
by the fourth amending agreement, likewise confers no
exclusivity on DSD. It refers only to the sales packaging
to be allocated to the DSD system. This is the packaging
covered by the DSD system,
sales
packaging which might be covered by an exemption
system in accordance with Section 6(3) of the Packaging
Ordinance.

than all

rather

(136) Originally, as has been explained in recital 57, DSD had
claimed that
joint use of DSD collectors’ collection
facilities by third parties should be possible only if DSD
had authorised it. The Commission told DSD that
conduct aimed at ensuring that third parties could make
joint use of containers and other collection facilities
belonging to collectors contracted to DSD only if DSD
had authorised such joint use might be interpreted as
obstruction of competitors constituting abuse of a
dominant position within the meaning of Article 82 of
the EC Treaty.

(137) After the Commission stated this view, DSD withdrew
its claim that third parties ought to be entitled to make
joint use of DSD collectors’ collection or other facilities
only with DSD’s permission, and gave a commitment to
that effect, which is set out in recital 72.

(138) There would also be a difficulty if DSD were to demand
payment for such use directly from third parties, or to
claim that it ought to have a say in the negotiation by
collectors and third parties of an appropriate payment
for the joint use of collection containers. But DSD, and
other parties with agreements with the collectors, are
free in their own dealings with the collectors to seek to
ensure that no services demonstrably provided for third
parties are charged to DSD, and where appropriate to
negotiate an appropriate reduction in payment with the
collectors.

(139)

therefore,

follow from the

It does not,
Service
agreement that competitors with DSD are denied access
there is no
to the collection infrastructure, so that
restriction of competition here within the meaning of
Article 81(1).

(c) Conclusion

(140) Consideration of the exclusivity clause in the Service
Agreement has shown,
that access to the
relevant market by domestic and foreign collectors is
greatly obstructed; this goes a considerable way towards
partitioning off a substantial part of
the common
the EC Treaty is therefore
market. Article 81(1) of

therefore,

applicable to the exclusivity clause in the Service
Agreement.

II. ARTICLE 81(3) OF THE EC TREATY AND ARTICLE 53(3)
OF THE EEA AGREEMENT

(141) As the exclusivity clause in the Service Agreements
between DSD and collectors is caught by Article 81(1)
of the EC Treaty, it has now to be established whether it
satisfies the tests of Article 81(3).

1. IMPROVING THE PRODUCTION OR DISTRIBUTION OF
GOODS OR PROMOTING TECHNICAL OR ECONOMIC
PROGRESS

(142) Any positive effects brought about by the exclusivity
clause in the Service Agreements, which is caught by
Article 81(1), must be weighed against the restrictive
effects of the agreements.

Service Agreement

it seeks to give effect

(143) DSD is currently the only extensive take-back and
exemption system for used sales packaging; according to
its objects,
to national and
Community environmental policy with regard to the
prevention, recycling and recovery of waste packaging.
therefore
The
intended to
is
implement
the German Packaging
the objectives of
Ordinance and of Parliament and Council Directive
94/62/EC of 20 December 1994 on packaging and
packaging waste (13). This
aimed at
preventing or reducing the impact of waste packaging
on the environment,
thus providing a high level of
environmental protection.

legislation is

collection points. Such agreements

(144) The Service Agreements concluded by DSD and the
collectors provide for practical steps to implement these
environmental objectives in the collection and sorting of
used sales packaging collected from households and
equivalent
are
essential if DSD is to meet the targets and obligations it
has assumed in connection with the operation of the
system. To this end the Service Agreements require the
establishment of logistical arrangements for collection
investment (see
and sorting which involve substantial
recital 53). Regular
final
consumers of used sales packaging differentiated into
specified reusable materials, and subsequent sorting or
preparation for full recovery, gives direct practical effect
to environmental objectives.

collection from private

(145) The

exclusivity clause

in the Service Agreements
between DSD and collectors makes it possible for the

(13) OJ L 365, 31.12.1994, p. 5.

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and to organise

parties to plan the provision of services on a long-term
reliably. The necessary
it
basis
investment can be carried out and recouped over an
economically reasonable period (see recital 54). There
are positive network effects
collection of
household packaging waste, and substantial scale and
scope advantages can be achieved, so that to entrust
collection to a single collector for the duration of the
the same
agreement produces gains in efficiency. At
time DSD, the purchaser of the service,
is given the
assurance that its requirements can be met on a regular
and reliable basis,
in a sensitive area which was
previously organised under public law.

in the

(146)

It can be accepted, therefore, that the exclusivity clause
in the Service Agreements contributes to improving the
production of goods and to promoting technical or
economic progress.

2. BENEFIT TO CONSUMERS

(147) The Service Agreements have the effect of guaranteeing
extensive collection from private final consumers of
sales packaging within the DSD system, differentiated
into reusable materials. This is in line with the methods
final consumers are already
of waste collection that
familiar with,
regarded as
especially consumer-friendly.

and can therefore be

(148) As a result of the scale and scope advantages achievable,
many of the manufacturers and distributors who are
under an obligation to take back and recover packaging
can be expected to make cost savings if they discharge
their obligation by taking part in an extensive system,
rather than seeking to meet their obligation individually.
It can be accepted that the cost savings made over the
lifetime of
agreement will be passed on to
consumers, and also that consumers will likewise benefit
as a result of the improvement in environmental quality
sought, essentially the reduction in the volume of
packaging (14).

the

(149) The Commission accordingly concludes that the Service
Agreements do comprise advantages for consumers, and
that consumers are allowed a faire share of the resulting
benefit.

3. THE RESTRICTION IS INDISPENSABLE

(150) The Commission has studied the exclusivity clause in
the end of

the Service Agreements, which run until

(14) According to information supplied by the German Federal
Government,
the volume of household packaging waste in
Germany fell from 7,6 million tonnes in 1991 to 6,7 million
tonnes
in 1997. See the explanatory memorandum to the
Packaging Ordinance.

2003, and has come to the conclusion that until that
time the clause is indispensable.

(151) The assessment of whether or not the exclusivity clause
is indispensable has to consider the economic and legal
framework in which the agreement was concluded. In
order to set up the system, substantial investment was
needed in the establishment of logistical arrangements
for the collection and of used sales packaging which
had not existed in the same form hitherto. This
investment had to be carried out by the collectors
contracted to DSD under Service Agreements.

(152) On grounds of management

and efficiency,

and
especially in order to ensure that the collection service
vital to the success of the system as a whole would be
provided on a regular and reliable basis,
the system
operator DSD decided to entrust collection to only one
firm in each of the approximately 500 designated areas
for the lifetime of the Agreement. The relatively short
time allowed for implementation by the drafters of the
Ordinance and the need to reach an understanding with
the local authorities also militated in favour of selective
agreements with collectors.

(153) But a decisive consideration for the assessment of the
indispensability of the exclusivity clause is the fact that
the investment required by the Service Agreement has
to be planned and carried out in security. Collectors
have
and
containers, and sorting facilities.

in collection vehicles, bins

to invest

(154) As

explained in recital 52, most of

the Service
Agreements initially notified were to run until the end
of 2005 or 2007.
long-term
contracts were indispensable in order to pay off the
investments carried out under the Service Agreement or
still to be carried out before its expiry, especially in the
logistics of collection and sorting.

It was argued that

(155) On the

of

basis

calculations

comprehensive

and profitability,

of
investment
the Commission has
studied the question whether the Service Agreements
had to run for so long in order to recoup the planned
investment, and has concluded that an
volume of
exclusive agreement running up to the end of 2005 or
2007 was not indispensable (see recital 55). The results
of this investigation suggested rather that if the Service
the end of 2003
Agreements were to run until
time to achieve an
collectors would have sufficient

L 319/20

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Official Journal of the European Communities

4.12.2001

so that

satisfactory

redemption

economically
their
of
lifetime was not
investment,
indispensable. The parties then stated that they would
be prepared to set a termination date of 31 December
2003 for the Agreements.

longer

a

(156) The Commission accepts,

reliable

service,

therefore,

collection

that without an
exclusivity clause running until 2003 it would not have
been possible to set up a countrywide system of
collection, and especially sorting, at least on the desired
scale, in the same time and with the same assurance of
a
and DSD would
consequently have been unable to establish the required
extensive take-back and exemption system. In view of
the
the
special
implementation of
the Packaging
Ordinance, involving the setting up for the first time of
the
an extensive take-back and exemption system,
Commission concludes
clause
that
running up to the end of 2003 is indeed indispensable.
Any Service Agreements between DSD and collectors
with a lifetime running beyond 31 December 2003 do
not satisfy the tests laid down in Article 81(3) of the EC
Treaty for exemption from the ban on restrictive
practices.

the objectives of

an exclusivity

circumstances

surrounding

(157) The Commission takes the view, however, that from
that
time onward the DSD system will have to be
regarded as fully established, and that conditions in
waste management as a whole and in the collection and
sorting of used sales packaging will be such that
long-term exclusivity obligations will no longer be
indispensable. For future service agreements, therefore,
the Commission considers that a lifetime of up to three
years, but not more, will generally be reasonable and
economically justified.

4. COMPETITION IS NOT ELIMINATED

(158) Regardless of DSD’s position on the relevant markets,
the exclusivity clause in the Service Agreements is not
likely to eliminate competition on the market in the
collection and sorting of household packaging waste.

(159)

In the first place, collectors excluded by DSD remain
free to offer their services to firms wishing to manage
their own waste. Such arrangements are possible at least
in respect of certain combinations of sales packaging
and collection points on the margins of the market (see
recital 87).

(160) Ultimately, however,

the question
whether competition can be eliminated turns on the

the assessment of

conditions of supply on the market
in question. As
explained in recitals 92 and 93, the supply side of the
market
in the collection and sorting of household
packaging waste is characterised by marked network
effects, that is to say effects of scale and scope, which
means that it is economically advantageous to entrust
the task to one collector in each designated area, at least
within any one exemption system. In addition, there are
considerations of spatial economics, collection logistics
and traditions of waste collection established among
in
consumers which make it economically difficult
many cases to duplicate the arrangements for collection
from households.

(161) The conditions of supply specific to the relevant market
also explain why the amended Packaging Ordinance
requires operators of dual exemption and take-back
systems to award collection services by competitive
(see recital 26). The Ordinance here takes
tender
account of the fact that supply-side competition on this
market is governed by special factors, and that tendering
will ensure that there is competition at least to secure
designated areas.

(162) Because of

the special conditions of supply on the
relevant market, the containers used for collecting used
often form a
from households
sales packaging
bottleneck in terms of competition. Realistically it is to
be expected that competing exemption schemes and
some self-management arrangements will often work
together with the collector currently carrying out
collection for DSD. Free and unimpeded access to the
collection infrastructure set up by collectors contracted
to DSD under a Service Agreement is therefore a vital
condition of more intense demand-side competition for
collection and sorting services for household packaging
waste, and more intense competition on the upstream
market
take-back and
the
recovery of household packaging waste.

in the organisation of

(163) As explained in recital 56, the Service Agreements do
not tie the collector exclusively to DSD. Collectors are
free to offer their services to others. DSD has also given
the Commission the commitments set out in recitals 71
in which it agrees to refrain from requiring
and 72,
collectors to use containers or other facilities for the
collection of used sales packaging solely for purposes of
the Service Agreement. Nor will DSD seek to restrain
third parties
from using DSD collectors’ collection
facilities.

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L 319/21

Obligations attached

given

already

joint use of

commitments
(164) Although DSD has
collection facilities by
regarding the
competitors, the Commission considers it necessary to
attach obligations to this Decision in view of the vital
importance of unimpeded access
to the collection
infrastructure for competition on a market characterised
the
by special
qualifications contained in the commitment set out in
recital 71. The aim is to ensure that the anticipated
effects on competition do in fact take place and that the
tests for exemption in Article 81(3) are accordingly
satisfied.

supply conditions and in view of

the

use

joint

(169) The Commission does not see that any provision of the
of
Packaging Ordinance prevents
receptacles. No such interpretation follows either from
judgments cited by DSD (15) or from the
the court
observations submitted by Germany (16). It is true that
the Packaging Ordinance,
since the amendment of
systems must meet their recovery quotas only in respect
of the packaging taking part in them, rather than in
the total volume of certain packaging
respect of
this
materials
the
provision, and one of
amendment,
just by
requiring that collection services be put out to tender,
but also by improving the scope for competition
between different collection systems (17).

the purpose of
the main objectives of

is to promote competition, not

(see recital 21). But

(165) DSD considers that the obligations that the Commission
proposes to attach to the Decision go well beyond the
commitments
that DSD and the Commission had
previously agreed; that they are not compatible with the
German Packaging Ordinance, at least as a general rule;
and that at least in some cases they are unreasonable on
other grounds.

(170) Volumes of packaging can be allocated to different
systems on a polluter-pays basis if they are shared by
means of quotas. DSD and the collectors already do this
for paper and board, where newspapers and periodicals
are also collected in the receptacles belonging to
collectors contracted to DSD (see recital 32).

(cid:151) Incompatible with the Packaging Ordinance

(166) DSD argues that

the Packaging Ordinance does not
allow self-managers to collect in the vicinity of the final
consumer. The Commission therefore cannot seek to
make it possible for them to do so by requiring DSD to
allow joint use.

(167)

is

a matter of debate

in Germany whether
It
self-managers must reach their quotas entirely through
collection at the point of sale (see recital 15). It is not
disputed, however, that even self-managers must collect
packaging from the vicinity of the final consumer if the
goods are delivered to the final consumer’s address, as is
the case for example with mail order or deliveries by
small traders (see recital 14). In any event, the Packaging
Ordinance does not require DSD to impose prohibitions
on the collectors contracted to it in order to enforce
public-law rules on self-management arrangements, and
compliance with the obligation attached to this Decision
will not
in any way compel DSD to infringe the
Packaging Ordinance.

(168) DSD argues that joint use of receptacles by competing
systems would not be compatible with the principle of
responsibility for one’s own product introduced when
the Packaging Ordinance was amended. Systems must
fulfil the recovery quotas for the packaging taking part
in them. It would not ordinarily be possible simply to
allocate packaging to one or other
system while
complying with the polluter-pays principle.

(171)

(172)

It should be added that when the Packaging Ordinance
is being interpreted account must be taken of
the
importance of the joint use of collection infrastructure
for the emergence of competition (recital 164). This is
not only because the promotion of greater competition
is one of the main objectives of the amendment to the
Packaging Ordinance,
any
but
interpretation of the Packaging Ordinance must have
regard to the European competition rules.

because

also

(cid:151) Unreasonable

In DSD’s view,
joint use would be unreasonable on
other grounds too, in some cases at least. It would make
it more difficult to draw up volume flow records; DSD
by
collectors’

employees would

endangered

be

(15) The Higher Administrative Court (Verwaltungsgerichtshof) of Hesse,
in a judgment delivered on 20 August 1998, ref. 8 TG 3140/98,
p. 23, held that a collection scheme set up in a specific area
which used its own receptacles to collect DSD system packaging
did not satisfy the requirements for an exemption system.

(16) DSD quotes a statement in Germany’s observations to the effect
that if packaging can be bought in there will be no incentive to
retrieve waste from the packaging one places on the market
oneself; but this relates only to the question whether self-managers
are entitled to collect or buy in packaging from the vicinity of the
final customer, and does not concern the question of the joint use
of receptacles by competing systems.

(17) See footnotes 11 and 15: the explanatory memorandum to the
and Higher

Packaging Ordinance,

of

amendment
Administrative Court of Hesse, loc. cit.

the

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4.12.2001

packaging which had held dangerous substances; DSD
the settlement stage; and
would be disadvantaged at
quite proper requests for information could not be met.

providers, it can be expected that there will in future be
an intensification of competition for collection services
for household packaging waste.

(173) Volume flow records are based on evidence of

the
volumes of packaging recovered (see recital 21). It is not
necessary to show that
these volumes consist of
packaging actually taking part in the system. Allocation
therefore, would not make volume flow
by quotas,
records any more difficult to prepare.

the

(174) A DSD collector would decide what use should be made
of
and would
receptacles belonging to him,
conclude any agreements necessary for the purpose, and
would consequently be in a position to take whatever
steps were needed to prevent any danger
to his
employees.

(175) The obligations attached to this Decision do not prevent
DSD from reducing its payments to a collector where
the collector allows his collection containers to be used
by third parties. Nor do they prevent DSD from
requiring information on this point. The
second
obligation is intended not
to prevent a demand for
information, but rather to ensure that when the volume
flow record is being drawn up the volumes collected for
competitors are properly credited to them.

Interim finding

free

and unimpeded access

(176) On the basis of the commitments given by DSD and the
obligations attached to this Decision the Commission is
satisfied that
to the
collection infrastructure is possible without restriction.
There is therefore realistic scope for market entry by
competing take-back and exemption systems and by
self-management arrangements, and as a result demand
The
possible without
competition
is
restriction.
to the
also satisfied that
Commission is
access
infrastructure will not be
impeded by any other
provisions
in the Service Agreement or by other
accompanying or implementing provisions having the
same effect.

(177) This protected market access for competing service
providers will allow an intensification of competition on
in the collection and sorting of
the relevant market
household packaging waste and on the upstream market
in the organisation of the take-back and recovery of
household packaging waste.

(178) On these facts, and in view of the obligations attached
to this Decision, the Commission finds that competition
on the relevant market is not eliminated. In view of the
service
guaranteed market

competing

access

for

Conclusion

(179) The exclusivity clauses

in the Service Agreements
concluded by DSD with collectors satisfy the tests for
the application of Article 81(3) on condition that the
Service Agreements provide for
termination on 31
December 2003.

C. RETROSPECTIVE EFFECT, DURATION OF
EXEMPTION; OBLIGATIONS

(180) The Commission notes that the Service Agreement has
qualified for exemption under Article 81(3) since 1
January 1996.

(181) Article 8(1) of Regulation No 17 states that exempting
decisions are to be issued for a specified period, and
that conditions and obligations may be attached thereto.
Under Article 6 of the Regulation, the date from which
such a decision takes effect is not to be earlier than the
date of notification, or
the date on which the
notification is brought
into conformity with the
conditions for the application of Article 81(1) and (3).
The exemption should therefore run from 1 January
1996 until 31 December 2003, in order to give DSD
and the collectors a sufficient measure of legal certainty
under the EC competition rules.

(182)

to

the

and

elimination

In order
to the
to guarantee third parties access
collection facilities of DSD’s partners in the Service
Agreement,
of
prevent
competition on the relevant markets, an obligation
should be imposed on DSD requiring it not to impede
collectors wishing to conclude and apply agreements
with organisations competing with DSD for the joint
use of containers or other facilities for the collection
and sorting of used sales packaging. Where there is joint
use of collection facilities, competitors with DSD should
be able to make unrestricted use of packaging collected
for them, and in order to ensure that this is so the
further obligation should be imposed on DSD that it
must not require of collectors that they inform DSD of
volumes of packaging not collected for the DSD system.
These obligations are indispensable in order to prevent
the elimination of competition on the relevant markets,
and constitute a clarification of the commitments given
by DSD which helps to increase legal certainty. The
commitments apply for the duration of the exemption.
these obligations,
If
Article 8(3)(b) of Regulation No 17 empowers
the
Commission to revoke the Decision.

the parties commit a breach of

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L 319/23

(183)

If before the end of the period of exemption it should
prove, perhaps from a decision of a German court of
last resort, that contrary to the Commission’s view the
joint use by third parties of the collection infrastructures
of Service Contract collectors is not compatible with
German law, and in particular with the Packaging
Ordinance, there would then have been a major change
in the facts basic to the making of this Decision, and
the Commission would reconsider the requirements for
to the Service
the
the
revoke
and would
Agreement,
declaration of exemption.

applicability of Article 81(3)

if necessary

other facilities for the collection and sorting of used sales
packaging, DSD may not require that they inform DSD of
volumes of packaging not collected for the DSD system.

Article 4

This Decision is addressed to the following undertakings:

Der Gr(cid:252)ne Punkt (cid:151) Duales System Deutschland AG
Frankfurter Stra(cid:223)e 720(cid:150)726
D-51145 K(cid:246)ln

(184) This Decision is without prejudice to the application of

Article 82 of the EC Treaty.

ART Abfallberatungs- und Verwertungs GmbH
Am Moselkai 1
D-54293 Trier

(185) This Decision is

likewise without prejudice to any
pending or future Commission proceedings in respect of
the German Packaging Ordinance,

Jakob Altvater GmbH & Co.
Postfach 4330
D-70781 Filderstadt

HAS ADOPTED THIS DECISION:

AWG Abfallwirtschafts GmbH Donau-Wald
Eginger Stra(cid:223)e 37
D-94532 Au(cid:223)ernzell

Article 1

BVSE Bundesverband Sekund(cid:228)rrohstoffe und Entsorgung e.V.
Hohe Stra(cid:223)e 73
D-53119 Bonn

the facts

in its possession and of

On the basis of
the
commitments given by DSD, the Commission finds that there
are no grounds under Article 81(1) of
the EC Treaty and
Article 53(1) of the EEA Agreement for action on its part in
respect of
the Guarantee
Agreements.

the Constitution of DSD or

Article 2

Acting under Article 81(3) of the EC Treaty and Article 53(3)
of the EEA Agreement, the Commission declares Article 81(1)
and Article 53(1) of
inapplicable to
individual Service Agreements containing an exclusivity clause
running no further than the end of 2003.

the EEA Agreement

This exemption shall
December 2003.

run from 1 January 1996 to 31

Article 3

Cordier Abfallentsorgung GmbH
St(cid:252)cks 8
D-66871 Konken

DASS GmbH
Hultschiner Damm 335
D-12623 Berlin

Betrieb f(cid:252)r das Duale System im Saarland
Untert(cid:252)rkheimerstra(cid:223)e 21
D-66117 Saarbr(cid:252)cken

ARGE Duales System Stormarn/Lauenburg
Vor dem Bockholt
D-23883 Grambeck

Edelhoff Entsorgung S(cid:252)d GmbH
Am Ententeich 11
D-36251 Bad Hersfeld

Entsorgung Dortmund GmbH
Sunderweg 98
D-44147 Dortmund

The following obligations are attached to the declaration of
exemption in Article 2:

ESG Entsorgungswirtschaft Soest GmbH
Aldegrewerwall 24
D-59494 Soest

(a) DSD shall not impede collectors wishing to conclude and
apply agreements with organisations competing with DSD
for the joint use of containers or other facilities for the
collection and sorting of used sales packaging.

Feldhaus Recycling GmbH & Co. KG
Eckernf(cid:246)rder Landstra(cid:223)e 300
D-24941 Flensburg

(b) Where collectors conclude agreements with competitors
with DSD providing for the joint use of containers or

Fischer Rohstoff Recycling Freudenstadt GmbH
Robert-B(cid:252)rkle-Stra(cid:223)e 10
D-72250 Freudenstadt

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Official Journal of the European Communities

4.12.2001

Rudolf Fritsche GmbH
Steinb(cid:252)hlstra(cid:223)e 5
D-91301 Forchheim

Friedrich Hofmann GmbH & Co.
Kirchenstra(cid:223)e 22
D-91186 B(cid:252)chenbach

Interseroh AG
Stollwerckstra(cid:223)e 9a
D-51149 K(cid:246)ln

Karl Nehlsen GmbH & Co. KG
Furtstra(cid:223)e 14(cid:150)16
D-28759 Bremen

Ostth(cid:252)ringer Recycling und HandelsGmbH
Auenstra(cid:223)e 55
D-07490 Gera-Langenberg

Rethmann Entsorgungswirtschaft GmbH & Co. KG
Dieselstra(cid:223)e 3
D-44805 Bochum

SAK Sondersh(cid:228)user Entsorgungs GmbH
Schachtstra(cid:223)e 5
D-99706 Sondershausen

Erwin Scheele GmbH & Co. KG
Agathastra(cid:223)e 63
D-57368 Lennestadt

Sch(cid:246)nmackers Umweltdienste GmbH & Co. KG
Laar 1
D-47652 Weeze

Trienekens GmbH
Greefsallee 1(cid:150)5
D-41747 Viersen

TWR Tenner Wertstoff Recycling GmbH
Straupitzstra(cid:223)e 11
D-03172 Guben

USB Umweltservice Bochum GmbH
Postfach 102465
D-44724 Bochum

VIVO Gesellschaft f(cid:252)r Abfallvermeidung GmbH
Lochham 56
D-83627 Warngau

VKS Verband Kommunale Abfallwirtschaft
reinigung e. V.
Postfach 510620
D-50942 K(cid:246)ln

und

Stadt-

Done at Brussels, 17 September 2001.

For the Commission

Mario MONTI

Member of the Commission

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Official Journal of the European Communities

L 319/25

ANNEX

Index of firms having (cid:145)notified(cid:146) the Service Agreement

Abfallbeseitigung H. Cohrs GmbH

Abfallwirtschaft Mei(cid:223)en GmbH

Abfallwirtschaft Werder GmbH

ALTROH GmbH & Co. KG

ARGE Magnitz/Bergler

ARGE Alb-Donau-Kreis Recycling

ARGE Fischer/Rethmann

ARGE Mabeg/Bornhorst/Ostendorf

ARGE Abfallwirtschaft Delmenhorst

ARGE Abfallwirtschaft Kreis Nordfriesland

ARGE Bergler Schmid & Zweck

ARGE DS Ennepe-Ruhr-Kreis

ARGE DSD Hoch-Taunus-Kreis

ARGE DSD Rheingau-Taunus

ARGE DSD (cid:151) Verpackungen Hochtaunuskreis

ARGE DSD im Kreis D(cid:252)ren

ARGE DSD Kreis Warendorf

ARGE DSD Rhein-Sieg-Kreis

ARGE Duales System Ahrweiler

ARGE Duales System Dresden Land

ARGE Duales System Hoyerswerda

ARGE Duales System Landkreis Cuxhaven

ARGE Duales System Landkreis Mainz (cid:151) Bingen

ARGE Duales System Landkreis M(cid:252)nchen

ARGE Duales System Landkreis Rottweil

ARGE Duales System L(cid:246)bau, Bautzen, Zittau

ARGE Duales System Stadt Herne

ARGE Duales System M(cid:252)hldorf

ARGE Elsen-Wagner-Sch(cid:246)nmackers

ARGE Hochsauerlandkreis

ARGE Kreis Mettmann GbR

ARGE LK Annaberg

ARGE LK D(cid:246)beln

ARGE Mildena GmbH

ARGE Schwarzwald-Baar

ARGE Steinburg/Itzehoe

ARGE Wertstofferfassung Ernst+Hofmann

ARGE Wertstofferfassung Landkreis Eichst(cid:228)tt

ARGE Wertstofferfassung Stadt Ingolstadt

ARGE ZUG-Garbot-Seidel

ARGE DSD-Verpackungen Main-Taunus-Kreis

ASM GmbH & Co. KG

AVW

AWG

AWU AbfallwirtschaftsUnion

29614 Soltau

01665 Gr(cid:246)bern

14542 Werder

23566 L(cid:252)beck

95643 Tirschenreuth

89584 Ehingen

80999 M(cid:252)nchen

27572 Bremerhaven

27755 Delmenhorst

25853 Ahrensh(cid:246)ft

92729 Weiherhammer

58454 Witten-Stockum

65205 Wiesbaden

65329 Hohenstein

65205 Wiesbaden

52457 Aldenhoven

59320 Ennigerloh

53721 Siegburg

53489 Sinzig

01159 Dresden

02977 Hoyerswerda

28759 Bremen

67678 Mehlingen

85572 Neubiberg

78655 Dunningen

02708 L(cid:246)bau

45127 Essen

88339 Bad Waldsee

53945 Blankenheim

59909 Bestwig-Velmede

42489 W(cid:252)lfrath

09456 Annaberg-Buchholz

04720 D(cid:246)beln

39624 Kalbe

78112 St. Georgen

25524 Itzehoe

91710 Gunzenhausen

85053 Ingolstadt

85053 Ingolstadt

08056 Zwickau

65719 Hofheim (Am Taunus)

22525 Hamburg

79761 Waldshut-Tiengen

37671 H(cid:246)xter

06901 Rackith

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AWU AbfallwirtschaftsUnion Kyritz GmbH

AWU AbfallwirtschaftsUnion Neuruppin GmbH

AWU AbfallwirtschaftsUnion Torgau GmbH

AWU AbfallwirtschaftsUnion Wriezen GmbH

AWU AbfallwirtschaftsUnion Wurzen GmbH

AWU AbfallwirtschaftsUnion Oranienburg GmbH

Bausch GmbH

Bauschutt Container Abfuhr Werkstoffrecycling

Bautrans Umweltservice GmbH

Becker GmbH

Becker Umweltdienste GmbH

Beekmann, R & J

Bickmeier St(cid:228)dtereinigung GmbH

Bogensch(cid:252)tz Alois

B(cid:246)hm Indupa GmbH & Co. KG

B(cid:246)hme GmbH

B(cid:246)hme Vogtlandentsorgung GmbH & Co. KG

Braun & Trienekens GmbH

Braun Entsorgung GmbH

Brewitzer Container

Breyer GmbH

Brunner GmbH

BWS Bergische Wertstoff-Sammel-GmbH

CED-Entsorgungsdienst

Chr. Schmid GmbH & Co.

DEKS GmbH

DELME Transport- u. Entsorgungsgesellschaft

Delpa GmbH & Co. KG

Dienstleistung & Recycling

Ehgartner Entsorgung GmbH

Entsorgungsbetrieb Alfred Kropf

Entsorgungsgesellschaft Bergische Region

Entsorgungswirtschaft Sonneberg GmbH

ESR GmbH

ETG GmbH

Fischer Recycling M(cid:252)nchen GmbH

Fischer Rohstoff Recycling GmbH

Frassur GmbH

Frey Entsorgung GmbH

Friedrich Herz GmbH

Georg Simon GmbH

GES Gesellschaft zur Entsorgung

Ges. z. Erfassung u. Aufbereitung GmbH

Gesellschaft f(cid:252)r Abfall und Recycling mbH

Gesellschaft f(cid:252)r saubere Umwelt

GEV GmbH

GFR Gesellschaft f(cid:252)r Rohstoffrecycling mbH

G(cid:246)lz Transporte

G(cid:246)rlitz GmbH

16866 Kyritz

16816 Neuruppin

04880 Dommitzsch

16269 Wriezen

04808 Burkartshain

16727 Velten

88212 Ravensburg

29664 Waldrode

76189 Karlsruhe

98544 Zella-Mehlis

19322 Wittenberge

26629 Gro(cid:223)efehn

39517 Tangerh(cid:252)tte

72415 Grosselfingen

12357 Berlin

95111 Rehau

08248 Klingenthal

52078 Aachen

85077 Manching

92660 Neustadt

66271 Kleinblittersdorf

92099 Grafenw(cid:246)rth

51766 Engelskirchen

09114 Chemnitz

73230 Kirchheim

45143 Essen

15526 Alt-Golm

27751 Delmenhorst

06847 Dessau

82538 Geretsried

95707 Thiersheim

42279 Wuppertal

96515 Sonneberg

55232 Alzey

73037 G(cid:246)ppingen

81677 M(cid:252)nchen

79108 Freiburg

04910 Elsterwerda

55471 W(cid:252)schheim

91555 Feuchtwangen

96342 Stockheim

63150 Heusenstamm

32440 Porta Westfalica

28816 Stuhr

18196 Karelsdorf

39101 Magdeburg

90768 F(cid:252)rth/Bayern

73230 Kirchheim

02814 G(cid:246)rlitz

4.12.2001

EN

Official Journal of the European Communities

L 319/27

Greifswald Entsorgung GmbH

Gr(cid:246)berner Deponiebetrieb

Gr(cid:246)ger GmbH

Hans Novak

Haselberger GmbH

HAW Havell(cid:228)ndische Abfallwirtschaftsgesellschaft

Heinz GmbH & Co. KG

Hiemenz GmbH

Hippe

Hoffmann Wolfgang

Hofmann KG

Horst Moldenauer GmbH

Inast GmbH

Jakob Becker GmbH

Jan Heitmann

Johann Dumps

Johannes Fehr GmbH & Co. KG

Karl Bickmeier GmbH

Karl Nehlsen GmbH & Co. KG

KCD Container-Dienst GmbH

Keske Entsorgung GmbH

Knittel GmbH

Kommunal- und Industrieentsorgung

Kommunalentsorgung Borna GmbH

Kraus Container

Landkreis Entsorgung GmbH

Lober GmbH & Co. KG

LSR GmbH

Ludwig Dorr

L(cid:252)neburger Rohstoffverwertung GmbH & Co. KG

MABEG GmbH & Co. KG

MABEG-Nord Gesellschaft f(cid:252)r Entsorgungswirtschaft

Mannert GmbH

Matthias Palzkill GmbH & Co. KG

Meier Entsorgung GmbH

Meindl Entsorgungsservice GmbH

MERB(cid:150)Mittelbadische EntsorgungsGmbH

Merseburger Entsorgung GmbH

MetallverwertungsGmbH

Meyer GmbH

M(cid:252)llabfuhr Containerdienst

M(cid:252)llbetriebe Varel GmbH

M(cid:252)lltrans Krupp GmbH & Co. KG

17489 Greifswald

01665 Niederau/OT Gr(cid:246)bern

89301 G(cid:252)nzburg

86603 Donauw(cid:246)rth

85604 P(cid:246)ring

14712 Rathenow

85368 Moosburg/Isar

64720 Michelstadt

01324 Dresden

83043 Bad Aibling

68519 Viernheim

22869 Schenefeld

74803 Mosbach

67678 Mehlingen

25335 Elmshorn

83457 Bayerisch Gmain

34253 Lohfelden

39517 Tangerh(cid:252)tte

28759 Bremen

55559 Bretzenheim

38112 Braunschweig

89269 V(cid:246)hringen

06928 Schweinitz

04552 Borna

92670 Windischeschenbach

08340 Schwarzenberg

92431 Neunburg vom Wald

37351 Dingelst(cid:228)dt

87439 Kempten

21357 Bardowick

44849 Herne

27572 Bremerhaven

66388 Gersthofen

54634 Bitburg

79189 Bad Krozingen

93138 Lappersdorf/Hainsacker

77855 Achern

06217 Merseburg

79288 Gottenheim

26131 Oldenburg

66994 Dahn

26316 Varel

67105 Schifferstadt

Nehlsen & Wassermann Entsorgungs GmbH

17039 Hellfeld/Neubrandenburg

Nehlsen Entsorgungs GmbH

Nehlsen Entsorgungs GmbH

Nehlsen Entsorgungs GmbH

Oberreiter KG

Orbit GmbH

18209 Bad Doberan

18311 Ribnitz-Damgarten

18573 Samtens/Rg.

84513 T(cid:246)ging

89416 Lauingen

L 319/28

EN

Official Journal of the European Communities

4.12.2001

Papyrus Wertstoff Service GmbH

Peter Edenharder GmbH

Peter Fink GmbH

Peter Schad GmbH & Co. KG

Pfahler GmbH

Pflelderer GmbH & Co. KG

Plauen GmbH

Radeberger Stadtentsorgung

RAG Sortier GmbH

RAZ Rohstoff-Aufbereitung GmbH & Co. KG

Recycling GmbH

REG GmbH

REMO Recycling GmbH

Rfels Recycling GmbH

Rhenus AG & Co. KG

RHK GmbH & Co.

RIA Umwelt GmbH

Rohstoff-Recycling Rostock GmbH & Co. KG

ROPA EntsorgungsGmbH & Co.

ROPA EntsorgungsGmbH & Co.

RPS Altvater GmbH & Co. KG

RTB Umwelt GmbH

RTB Umwelt GmbH

RTS Umwelt

Rudolf Seiler

RZM GmbH

RZS Recycling Zentrum GmbH

SAK Entsorgungs- und Recycling GmbH

Samme, Kruse & Pape GmbH & Co.

Saso Velbert GmbH

Sauter+Weh GmbH

Schader EntsorgungsGmbH

Scherrible GmbH & Co.

Schmid & Zweck GmbH

Schneemann Recycling GmbH

Sch(cid:246)nmackers Umweltdienste GmbH & Co. KG

Sch(cid:246)nmackers Umweltdienste GmbH & Co. KG

Sch(cid:246)nmackers Umweltdienste GmbH & Co. KG

Sch(cid:246)nmackers Umweltdienste GmbH & Co. KG

Sch(cid:246)nmackers Umweltdienste GmbH & Co. KG

Sch(cid:246)nmackers Umweltdienste GmbH & Co. KG

SEE Stadt Eisenach Entsorgung GmbH

Seebauer Abfallentsorgung

SERO Leipzig GmbH

SERO Recycling GmbH

SERO-Handel Dresden GmbH

S-plus Umweltservice GmbH

St(cid:228)blein GmbH

Stadtentsorgung Huth GmbH

83435 Bad Reichenhall

92318 Neumarkt

85221 Dachau

36124 Eichenzell

91550 Dinkelsb(cid:252)hl

70327 Stuttgart

08525 Plauen

01454 Radeberg

79730 Murg

14823 Niemegk

13407 Berlin

78658 Zimmern

04736 Waldheim

38644 Goslar

44147 Dortmund

24145 Kul

04420 Bienitz

18059 Rostock

81245 M(cid:252)nchen

70197 Stuttgart

67158 Ellerstadt

16928 Falkenhagen

15306 Seelow

01259 Dresden

66587 Merchweiler

39126 Magdeburg

21684 Stade

99706 Sondershausen

22113 Hamburg

42551 Velbert

58074 Meckenbeuren

64625 Bensheim

73730 Esslingen

92224 Amberg

37115 Duderstadt

41836 H(cid:252)ckelhoven

47906 Kempen

50171 Kerpen

41464 Neuss

57074 Siegen

08228 Rodewisch

99817 Eisenach

93648 Vohenstrau(cid:223)

04179 Leipzig

19018 Schwerin

01159 Dresden

71332 Waiblingen

97659 Sch(cid:246)nau

06791 Zschornewitz

4.12.2001

EN

Official Journal of the European Communities

L 319/29

St(cid:228)dtereinigung Nord GmbH & Co. KG

Steiger GmbH

STEP Stadtentsorgung Potsdam GmbH

Stralsunder EntsorgungsGmbH

Stratmann EntsorgungsGmbH

Theo Kleiner Recycling GmbH

TK Umweltdienste Bonn GmbH & Co. KG

T(cid:246)nsmeier Entsorgung

T(cid:246)nsmeier Entsorgungsdienste GmbH

TUE Entsorgung GmbH

TVG (cid:150) Transport- und Verwertungsgesellschaft

UMTECH GmbH

Umweltdienst S(cid:246)mmerda GmbH

Umweltdienste GmbH

Unstrut-Hainich GmbH

USEG Verpackung-Recycling GmbH

UWE Entsorgung GmbH

Veno GmbH

Wagner Entsorgung GmbH

Werner GmbH & Co.

Wertstoffentsorgung Konstanz GmbH

Wertstoffgesellschaft Konstanz Firma Danner

Wertstoffrecycling KG

WeVo St(cid:228)dtereinigung Oschersleben

WGV Recycling GmbH

Willi Hipp Systementsorgung

Wilm GmbH

Wittko KG GmbH & Co.

WMD Schreiber GmbH

WMD Schreiber St(cid:228)dtereinigung GmbH & Co.

Wolf GmbH

Wolfener Recycling GmbH

WRZ H(cid:246)rger GmbH & Co. KG

WSA GmbH & Co.

Zeitzer EntsorgungsGmbH

24837 Schleswig

85376 Hetzenhausen

14478 Potsdam

18435 Stralsund

01109 Dresden

66953 Pirmasens

53121 Bonn

32457 Porta Westfalica

06333 Welfesholz

99086 Erfurt

64319 Pfungstadt

06653 Wei(cid:223)enfels

99610 S(cid:246)mmerda

21737 Wischhafen

99991 H(cid:246)ngeda/M(cid:252)hlhausen

76275 Ettlingen

04425 Taucha

96472 R(cid:246)dental

96317 Kronach

63773 Goldbach

78459 Konstanz

78315 Radolfzell

86368 Gersthofen

39387 Oschersleben

82547 Eurasburg

88045 Friedrichshafen

84405 Dorfen

24539 Neum(cid:252)nster

25524 Itzehoe

59494 Soest

63654 B(cid:252)dingen

06766 Wolfen

89567 Sontheim

73257 K(cid:246)ngen

06712 Zeitz