Notice under Article 19(3) of Council Regulation No 17 — Case COMP/A.35.470/D3 — ARA — Case COMP/A.35.473/D3 — ARGEV, ARO (Text with EEA relevance)
Date: 2002-10-19
Institutions: European Commission
Subjects: Austria, application of EU law, competition law, infringement procedure (EU), joint venture, packaging, waste management, waste recycling

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Official Journal of the European Communities

19.10.2002

Notice under Article 19(3) of Council Regulation No 17 (1)

Case COMP/A.35.470/D3 — ARA

Case COMP/A.35.473/D3 — ARGEV, ARO

(2002/C 252/02)

(Text with EEA relevance)

1. NOTIFICATIONS AND COMPLAINTS

ARGEV

1. On 30 June 1994 Altstoff Recycling Austria AG (‘ARA’)
and
Verpackungsverwertungs-Ges.m.b.H.
(‘ARGEV’), both with their registered offices in Vienna,
notified various agreements to the EFTA Surveillance
Authority seeking negative clearance or alternatively
exemption from the ban on restrictive practices.

2.

In a letter dated 21 March 1995 EFTA transferred
responsibility for examining these notified agreements
to the European Commission.

the requirements of

3. ARA organises a countrywide collection and recycling
system for packaging in Austria. The system is designed
to meet
the Austrian Packaging
Ordinance (Verpackungsverordnung). To this end, ARA con-
cludes waste disposal contracts with sectoral recycling
companies (Branchenrecyclinggesellschaften — BRGs), assig-
ning to them the task of organising the collection, sor-
ting, transport, and recycling of packaging. The BRGs, of
which ARGEV is one, are each responsible for specific
packaging materials or material groups. They in turn
conclude contracts with undertakings or local authorities,
which then do the actual collection, sorting, transport
and recycling. ARA and the BRGs together form the
ARA system.

4. By letter dated 28 August 2001, ARA notified further
agreements
view to
to the Commission with a
obtaining negative clearance or exemption. ARA and
ARGEV also sought to have their notifications joined.
At
time Altpapier-Recycling-Organisations
GmbH (‘ARO’) indicated that it was becoming a party
to the notification as it, too, wished to notify agreements.

same

the

5. The notification concerns agreements which together
form the basis of the way that the ARA system operates.

6. On

FRS

1996

8 May

Folien-Rücknahme-Service
GmbH & Co. KG and Raiffeisen Umweltgesellschaft
m.b.H.
European
the planned
Commission (COMP/A.36.011/D3) against

complaint with

lodged

the

a

(1) OJ 13, 21.2.1962, p. 204/62.

formation of a joint venture to set up a collection and
recycling system for packaging. However,
the original
complainants did not pursue their complaint, having
abandoned their intention to take part in setting up the
system. In a letter dated 27 April 2000 the newly formed
joint venture EVA Erfassen and Verwerten von Altstoffen
GmbH (‘EVA’), with its registered offices in Vienna, took
up and elaborated on the
the
companies in the ARA system as a new complainant,
citing the aspects
complained of by the previous
complainants. EVA is now a wholly-owned subsidiary
of
Interseroh Aktiengesellschaft zur Verwertung von
Sekundärrohstoffen, with its registered offices in Cologne.

complaint

against

7.

In addition, on 24 March 1994 the Federal Chamber of
Wage- and Salary-earners (Bundeskammer für Arbeiter und
Angestellte)
lodged a complaint with the EFTA Surveil-
lance Authority and — when the case was handed over
to the European Commission — wrote to the European
Commission, Directorate-General for Competition, on 19
February 1996 citing the above complaint and submitted
a statement on the ARA system, which it later expanded,
notably in its letter of 22 March 2002.

2. THE AUSTRIAN PACKAGING ORDINANCE

8. On 1 December 1996 the Ordinance of

the Federal
Minister for the Environment, Youth and Family Affairs
on the avoidance and recycling of packaging waste and
certain waste goods and the establishment of collection
and recycling systems (Verordnung des Bundesministers für
Umwelt, Jugend und Familie über die Vermeidung und Ver-
wertung von Verpackungsabfällen und bestimmten Warenresten
und die Einrichtung von Sammel- und Verwertungssystemen (2)
— ‘Packaging Ordinance’) came into force in Austria. The
Ordinance is based on the Austrian Waste Management
Act (Abfallwirtschaftsgesetz — ‘AWG’) and implements Di-
rective 94/62/EG of the European Parliament and of the
Council of 20 December 1994 on packaging and packa-
ging waste (3). The Packaging Ordinance is an amended
version of the first Packaging Ordinance that came into
force in October 1993 (4).

(2) BGBl. No 648/1996.
(3) OJ L 365, 31.12.1994, p. 10.
(4) BGBl. No 645/1992.

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9. The aim of the Packaging Ordinance is to avoid or reduce
the impact of waste and packaging on the environment.
Section 1(1) of the Ordinance states that it applies to
manufacturers, importers, packers, distributors and final
importers,
consumers. Under Section 3 manufacturers,
packers
sales
and
distributors
packaging are obliged to take back any packaging they
put into circulation, free of charge after use, and return it
to an upstream obligated undertaking, or reuse it, or
recycle it using the latest technology.

transport

and

of

10. Under

if

the terms of Section 12 of
importers,

the Packaging
Ordinance, manufacturers,
and
packers
distributors of outer packaging are also required to take
back any packaging they put into circulation,
free of
the final consumer,
they are not
charge after use,
and to return it to an upstream obligated returnee, or
technology.
reuse it, or
recycle it using the latest
Obligated undertakings may use the services of
third
parties in order to meet their obligations. Those obli-
gations apply from the final distributor through every
stage of distribution back to the domestic manufacturer
or importer. When purchasing packaged goods,
final
consumers can leave outer packaging at or near the
leave
point of sale.
outer packaging behind,
the rules on sales packaging
apply by analogy.

the final consumer does not

If

11. Manufacturers,

importers, packers and distributors are
required under Section 3(3) of the Packaging Ordinance
to take back sales packaging used by final consumers
near the point of sale free of charge. This obligation is
limited to packaging of the same type, shape and size as
used for the goods put into circulation.

12. Owners of businesses that accumulate certain minimum
quantities of packaging can apply to be registered as
major sources. This means that they must ensure the
the packaging
collection and reuse or
the Packaging
within the business
Ordinance).
importers and
packers are commonly said to be ‘dispensed from their
obligations’ by the system operator.

recycling of
(Section 8 of

In this case manufacturers,

transport

13. Under Section 3(5) of the Packaging Ordinance, if manu-
facturers, importers and packers are part of a collection
and recycling system, the obligation to take back and
including
recycle
upstream and downstream in the distribution chain,
is
transferred to the system operator. The same applies
under Section 4 of
to
distributors who supply transport and sales packaging
to final consumers (final distributors).

the Packaging Ordinance

packaging,

sales

and

14. Under Section 11 of

the Packaging Ordinance

a
collection and recycling
this kind for
transport and sales packaging must ensure the collection
and recycling of
the packaging materials for which
contracts have been concluded with obligated under-
takings.

system of

15. There is no general legal obligation to participate in any
such system set up (but see point 18). Undertakings not
participating are still obliged to take back packaging indi-
vidually. However, within their field of activity, collection
and recycling systems are required to conclude contracts
with any obligated undertaking that wishes to participate,
provided this is objectively justified. The field of activity
of collection and recycling systems comprises packaging
and in
accumulating both in private households
commerce and industry. Packaging that comes under a
collection and recycling system does not have to be
specially labelled.

16. Under Section 7(a)(I) of the Waste Management Act the
establishment of a collection and recycling system or any
major alteration requires
approval by the minister
responsible. Under Section 7(e) of the Waste Management
Act a special procedure applies to systems which the
judges
minister
to hold a monopoly
responsible
taking over obligations for the
position in terms of
collection and recycling of waste
accumulating in
households and similar areas.

if

this

serves

17. Both undertakings with a take-back obligation but not
participating in a system and collection and recycling
systems themselves have to meet specified collection
and recycling quotas. Under Section 11(7) of
the
Packaging Ordinance, authorisations for collection and
recycling systems may lay down specific collection and
recycling quotas
the requirements of
environmental protection and economic expedience and
is appropriate. Under Section 3(6) of
the Packaging
importers and packers as
Ordinance, manufacturers,
defined in Section 3(4) of
the Packaging Ordinance,
final distributors as defined in Section 4, and all
subsequent
for
the
packaging that does not come under a collection and
recycling system or has not been granted exemption
under Section 7 are subject to certain record-keeping
requirements regarding take-back and recycling and to
packaging-specific take-back and recycling quotas.

distribution

stages

chain

in

18. Under Section 3(9) of the Packaging Ordinance, partici-
pation in a collection and recycling system is compulsory
if records relating to the take-back obligations under
Section 3(6) are not supplied.

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3. THE ARA COLLECTION AND RECYCLING SYSTEM

It

19. The ARA system was set up in 1993 on the initiative of
Austrian business and industry in order to implement the
Packaging Ordinance.
is a country-wide system in
Austria for the collection and recycling of all packaging
materials and packaging (except bio-packaging)
from
households, businesses and industries that are subject to
the Packaging Ordinance. It is a non-profit system, and
consists of ARA and eight economically independent
BRGs.

20. ARA, together with the BRGs, organises and coordinates
the collection, sorting and recycling of transport and sales
packaging in Austria. It offers its services to all Austrian
the
and foreign businesses directly
Packaging Ordinance.

concerned by

3.1. ARA

packaging (wood, ceramic, plastic, bonded materials,
textile fibre), Österreichischer Kunststoff Kreislauf AG
(ÖKK) for plastic and textile-fibre packaging, Altpapier-
Recycling-Organisationsgesellschaft m.b.H.
for
packaging made of paper, cardboard, paperboard or
corrugated board, and Austria Glas Recycling GmbH
(AGR) for glass packaging.

(ARO)

24. By

a decision under Section 7(e) of

the Waste
Management Act the Austrian ministry responsible has
a monopoly or near
established the
monopoly position in the case of ARO, ÖKK, ARGEV,
AGR and Öko-Box Sammel GmbH, which cooperates
with the ARA system.

existence of

25. The operation of

the collection and recycling system
enables ARA's licensees to be dispensed from their obli-
gations for the packaging in question under Section 3(5)
of the Packaging Ordinance. The rights of licensees in
relation to the BRGs are represented by ARA acting as
trustee.

21. ARA is a public limited company (AG), privately owned,
founded in 1993. The owner and sole shareholder is the
Altstoff Recycling Austria Verein (‘ARA Association’).
Any undertaking or association of undertakings directly
affected by the Packaging Ordinance can become a
member. This includes firms in the packaging industry,
the bottling and packing industry and the retail trade. To
avoid conflicts of interest, firms in the waste disposal and
recycling sector are excluded from membership. The
ARA Association
constituencies
reflecting the interest groups of undertakings affected
by the Packaging Ordinance: bottlers/packers/importers,
retailers, and the packaging industry. The constituencies
are represented equally on the Association's executive
board, which also forms ARA's supervisory board. The
ARA Association currently has about 240 members.

comprises

three

3.2. The BRGs

22. ARA does not take back or recycle used packaging itself.
relies on the BRGs, with whom it has
Instead it
concluded
these
‘waste
contracts the BRGs undertake to ensure the collection,
sorting and/or recycling of used packaging under the
terms of the Packaging Ordinance.

contracts’. Under

disposal

in

every Austrian

26. The BRGs do not perform the tasks of collection and
recycling directly either, but conclude contracts for this
purpose
political
subdivision, with private businesses (known as ‘regional
partners’) who take charge of the actual disposal. The
their
regional partners may in turn subcontract out
work. In a few instances, especially in larger cities, the
regional partners are the municipal authorities. The BRGs
are:

region,

i.e.

ARGEV
Ges.m.b.H.

Arbeitsgemeinschaft

Verpackungsverwertungs-

fibre,

textile

27. ARGEV is responsible for the collection, sorting and
conditioning of packaging made of plastic, metal,
wood,
ceramics or bonded material.
ARGEV shareholders are ARA (11 %) and ARGEV
Association. ARGEV Association comprises around 110
members in four categories
(manufacturers/importers,
retailers, packaging
industry/BRGs, disposal/recycling
firms). The waste disposal sector has no voting rights
in the association's statutory bodies (executive committee,
general assembly).

23. The following companies

in the ARA system have
registered with the Austrian ministry responsible as
system operators under Section 45(11) or Section 7(a)
of
the Waste Management Act: ARGEV for metal
packaging (ferrous, aluminium) and for so-called light

28. ARGEV collection systems comprise a household system
for
light packaging, a household system for metal
packaging and a commercial system for light and metal
packaging.

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29. In 2000 there were 57 regional partners — waste
disposal firms, municipal enterprises and consortia —
running the collection systems on behalf of ARGEV. At
regional
there were 144 private and municipal
disposal companies involved in providing services as
collectors plus 47 sorting and shredder plants. In 2002
the number of regional partners was 64.

level

30. ARGEV has concluded cooperation contracts with the
following BRGs responsible for recycling: Alurec, AVM,
FerroPack, ÖKK and VHP.

ÖKK Österreichischer Kunststoff Kreislauf AG

31. ÖKK is in charge of the recycling of plastic and textile
packaging. ARA holds 11 % of the shares in ÖKK. The
remaining 89 % of shares are held by the Österreichischer
Kunststoffkreislauf association. At 31 December 2000 the
association had a total of 51 members. The association's
members are divided into constituencies of plastic manu-
facturers and distributors, plastic goods manufacturers
system
and distributors, users of plastic packaging,
partners (in concrete terms ARGEV), organisations and
undertakings
recycling industry and
organisations and undertakings in the disposal industry.
To avoid conflicts of interest, organisations and under-
takings in the plastics recycling sector and the disposal
industry (some of whom have business dealings with
ÖKK) have no voting rights
association's
committee and are completely excluded from meetings
to discuss legal business between association members
and ÖKK.

in the plastics

in the

32. To carry out recycling ÖKK has concluded contracts with
disposal firms and transport companies. In 2001 there
were 16 disposal companies for sorted plastics and eight
disposal companies for mixed plastics in Austria.

Aluminium-Recycling GmbH

33. Alurec is responsible for the recycling of aluminium
packaging collected by ARGEV. The shareholders in
Alurec are the aluminium producer Austria Metall AG
(‘AMAG’) and Salzburger Aluminium AG (‘SAG’). The
other shareholders are packaging manufacturers.

34. The recycling of aluminium packaging is done in the
only two Austrian disposal plants AMAG and SAG. The
proceeds from the aluminium are renegotiated each year

and linked by a percentage key to the secondary
quotation for aluminium on the London Metal Exchange.

Arbeitsgemeinschaft Verbundmaterialien GmbH

35. AVM is responsible for the recycling of packaging made
of bonded materials except for bonded drinks cartons.
The shareholders are ARO and ÖKK, each with 50 %.
AVM organises recycling of the materials in close coop-
eration with ÖKK.

Verein für Holzpackmittel

36. VHP is responsible for the recycling and some collection
of wood packaging. The association currently has 16
members, who are the Austrian wood packaging manu-
facturers and dealers.

FerroPack Recycling GmbH

37. FerroPack is responsible for the recycling of ferrous metal
packaging collected by ARGEV, in other words tin plate
and steel. The sole shareholder of FerroPack is the
FerroPack Association for Metal Recycling (Verein für Me-
tallrecycling FerroPack). The association currently has six
members, who are the Austrian manufacturers of tin-
plate and steel packaging.

Altpapier-Recycling-Organisationsgesellschaft m.b.H

38. ARO is

responsible for collection and recycling of
cardboard, board and
packaging made of paper,
corrugated board. ARA holds 11 % of
the shares in
ARO. The remaining shares are owned by paper manu-
facturers (roughly 28 %), de-inking recycling firms (27 %)
and the paper processing industry (about 34 %). Each of
the 17 ARO shareholders holds less than 17 %.

39. ARO has concluded agreements with 538 local auth-
orities throughout Austria for near-household collection
and with 79 disposal companies for all services relating
to collection from retailers, business and industry.

Austria Glas Recycling GmbH

40. AGR is responsible for the collection and recycling of
glass packaging. ARA owns 11 % of AGR shares. The
remaining 89 % are owned equally by the two Austrian
glass producers Vetropack Austria GmbH and Stölzle
Oberglas GmbH.

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41. AGR's country-wide collection system operates mainly as
a bring-it-yourself system, with bulk containers set up at
central locations. AGR operates in close cooperation with
municipalities
and over 30 private waste-disposal
companies.

3.3. Basic economic data

42. The ARA system is financed by the fees paid by the
enterprises that belong to the system (known as ‘licensees’
(Lizenzpartner)). Firms sign up to the ARA system through
a dispensation and licence agreement, by which they
transfer their obligations under the Packaging Ordinance
to the ARA system in return for payment of a fee, so
being released from their obligations.

43. The number of licensees was 10 994 in 1997, 11 479 in
1998, 12 027 in 1999 and 12 295 in 2000. ARA's
income from licence fees amounted to ATS 2 608,1
million/EUR 189,6 million in 1997, ATS 2 673,0
million/EUR 194,2 million in 1998, ATS 2 694,2
million/EUR 195,8 million in 1999 and ATS 2 543,3
million/EUR 184,8 million in 2000.

3.4. Market situation

44. The ARA system is the only country-wide collection and
recycling system covering all material waste types (except
bonded drinks cartons)
in the area of near-household
packaging in Austria. ÖKO-BOX Sammelges.m.b.H. also
operates a country-wide collection and recycling system
for used light drinks-packaging, cooperating with ARGEV
in order to ensure country-wide collection. In addition,
Bonus Holsystem für Verpackungen GmbH & Co. KG
operates a disposal system in the building sector for
packaging left
final
consumers and in the farming sector for packaging left
with farmers.

at building sites with private

which disposes of metal, plastic, paper, wood, and
bonded materials,

— Bonus Holsystem für Verpackungen GmbH & Co. KG
(formerly FRS Folien-Rücknahme-Service GmbH & Co
KG), Kufstein, which disposes of metal, plastic, paper,
wood and textile packaging; this is, however, confined
to packaging left with a commercial end user (in the
building sector also with private final consumers at
bare-shell buildings and in the farming sector with
farmers),

— RUG Raiffeisen Umweltgesellschaft m.b.H., Korn-
neuburg, which disposes of reusable wine bottles
and agricultural film,

— GUT Dr Klaus Galle Umwelttechnik & Ökoconsulting,
Klosterneuburg, which disposes of metal, plastic,
paper, wood, bonded, and bio-packaging,

— Pape

Entsorgung GmbH & Co.

KG, Hanover,
Germany, which disposes of packaging for auto-
mobile OEM spare parts.

47. Only EVA, BONUS and GUT have their own system

authorisation for the entire commercial sector.

48. There are also some self-disposal solutions, including for

what are known as major sources.

4. NOTIFIED AGREEMENTS

49. This notice concerns:

45. In the household sector,

solutions
Packaging Ordinance on any significant scale.

in operation under Section 3(6) of

there are no self-disposal
the

— the dispensation and licence agreements between
the

ARA and
under
Packaging Ordinance (without list of charges),

undertakings

obligated

46. In the field of commercial and industrial packaging, the
ARA system has several competitors, though they bear
no comparison with the ARA system in terms of their
economic importance. They are:

— the waste disposal contract between ARA and ARGEV
as a model for the waste disposal contracts concluded
between ARA and the following BRGs listed in the
annex to the notification: ARGEV, AVM, ARO, AGR,
Alurec, Verein für Holzpackmittel, FerroPack, ÖKK,

— EVA Erfassen and Verwerten von Altstoffen GmbH, a
the Interseroh Gruppe in Germany,

subsidiary of

— the waste disposal or cooperation contract between
ARGEV and ÖKK, and between ARGEV and Alurec,
as models for the contracts concluded by ARGEV
with ÖKK, Alurec, FerroPack and VHP,

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— the contracts concluded by ARGEV and ARO with

their respective regional disposal partners.

4.1. Dispensation and licence agreements

50. The legal

relationship between ARA and the firms
belonging to the system is governed by a standard
contract, the ‘dispensation and licence agreement’. The
following variants of the standard contract exist:

54. ARA has stated that a confirmation of dispensation
issued under Section 3(5) of the Packaging Ordinance
by the operator of approved collection and recycling
systems to licensees suffices as evidence of recourse to
a parallel dispensation system. With regard to self-
disposed packaging, ARA contents itself with presen-
tation of the take-back records drawn up by self-disposers
themselves for submission to the environment ministry in
accordance with Section 3(6)(2) of
the Packaging
Ordinance.

— a dispensation and licence agreement for transport,

sales, and outer packaging (‘ELV’), and

— a dispensation and licence agreement

for service

packaging (‘ELVS’).

agreement

51. Licensees with a low annual licence fee can conclude a
‘supplementary
of
packaging’. Firms with their registered offices in EU
countries can become licensees of ARA by concluding
a ‘supplementary agreement for foreign licensees from
EU countries’.

quantities

small

for

4.1.1. Dispensation and licence agreement for transport, sales, and

outer packaging (‘ELV’)

the

52. Article I(1) of the ELV spells out ARA's role as trustee for
the licensees, representing licensees' interests vis-à-vis the
BRGs. The licensees charge and authorise ARA to
disposal
conclude
contracts
lowest-cost waste
possible with the BRGs in their
interest. The waste
disposal contracts are to require the BRGs to collect
and/or recycle (depending on the BRG concerned) all
packaging covered by collection and/or recycling guar-
antees in a proper professional manner in accordance
with Packaging Ordinance. Licensees' rights vis-à-vis the
BRGs are exercised solely by ARA as the trustee, acting
in its own name but on behalf and in the interest of
licensees. ARA obtains services from the BRGs under
contracts with BRGs in its own name, but on behalf
and in the interest of licensees.

53. Under Article I(2) licensees are obliged to participate in
the collection and recycling systems in the ARA system
in respect of all packaging covered by the Packaging
Ordinance for which collection and recycling guarantees
exist for the duration of the contract. The sole exception
concerns packaging where it can be shown that there is
already dispensation at another economic stage or where
the licensee himself or authorised persons charged by
him carry out collection and recycling demonstrably in
accordance with the law without direct or
indirect
recourse to the ARA system.

55. Under Article I(4) ARA grants the licensee the right, for
the duration of the contract, to use the ‘Green Dot’ — the
protected mark of the Duales System Deutschland AG
(‘DSD’) — to indicate their participation in the collection
and recycling systems of the ARA system. The right to
use the mark can be withdrawn by ARA at any time; it is
geographically confined to the territory of the Republic
of Austria and is not transferable. Packaging must be
marked so as not to mislead. The mark must always be
used in such a way as to take account of the interests of
the mark. The licensee must take note that use of the
logo abroad may require the permission of an authorised
user there. The payment of licence fees to ARA does not
signify permission by DSD or a foreign authorised user to
use the mark. There is no obligation to affix the Green
Dot mark on packaging participating in the ARA system.

56. Article II deals with calculation and payment of

the

I(2)

The

above).

volume

undertakes

situation or

licensee
each specific

the
licence fee. Under paragraph 1, the fee payable by the
licensee is based on the volume of packaging that the
licensee puts into circulation within the country (see
to
Article
determine
type of
for
packaging covered by the contract and to use those
figures
for calculating the licence fee payable. The
licence fees are calculated using the rates published by
ARA, which, under paragraph 5, may be changed by
ARA no more than once a year
to three
subject
In the event of substantial
months' advance notice.
change
fundamental
the
cost
in the
the
assumptions underlying calculation of
licence fees, special adjustments in licence fees may be
made. Under paragraph 10, the licensee will receive a
closing annual statement from ARA by 1 March each
year,
indicating all packaging reported by the licensee
during the previous calendar year, broken down by
type of packaging. The licensee has the right to make
retrospective corrections to his reports for the previous
calendar year and to request a corresponding licence fee
offset. ARA has claimed that the annual closing statement
thus gives the licensee the opportunity to adjust his
reports to his actual situation in terms of self-disposal.
ARA in turn reserves the right to make licence fee offsets
only on production of supporting documents for the
corrections to the annual statement.

the size of

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57. According to ARA the licensee's payment obligation
under Article II was never intended as payment for the
use of the logo (in other words as consideration for the
right to use the Green Dot on packaging), but as a fee for
the dispensation provided via the system. Article II(1) has
to be understood accordingly, and is applied in such a
way that the licence fee is payable only for packaging in
respect of which licensees seek dispensation through the
system. The way in which this principle is implemented
is that the licensee makes monthly or quarterly reports to
ARA in accordance with Article II(4) only in respect of
packaging for which it does not operate a self-disposal
solution or does not participate in a parallel dispensation
system. This even means
that ARA sometimes has
‘blanks’, in other words there are firms which maintain
their ELV but do not wish to participate with any
packaging in the ARA system over a certain period and
enter ‘zero’ in their reports on the amount of licensed
packaging put into circulation.

can be

shown that

58. ARA has also indicated that it has no objection if the
Green Dot is affixed to packaging that is not licensed
with ARA, provided it
the
packaging is dealt with and recycled in accordance with
the Ordinance and ARA can verify this. On this question
ARA has entered into the second undertaking referred to
at point V. Under Article III the contract is concluded for
an indefinite period. The licensee has the ordinary right
to terminate the contract at the end of each calendar year
after giving six months' notice. ARA waives its ordinary
right to terminate the contract. Both parties have the
special right to terminate the contract on grounds of
major importance.

some of his service packaging, without having to present
evidence in accordance with the second sentence of
Article I(2) of
the ELV in respect of packaging for
which dispensation was already obtained at another
economic stage or which is collected and recycled in
conformity with the law without recourse to the ARA
system.

4.1.3. Supplementary agreement for small quantities of packaging

61. Where ARA and the licensee expect the licensee's annual
licence fee under Article II of the ELV to amount to less
than ATS 25 000 (excluding VAT), a ‘supplementary
agreement
for small quantities of packaging’ may be
concluded. This involves the agreement of simplified
administrative procedures regarding reporting packaging
quantities and payment of the licence fee.

4.1.4. Supplementary agreement for foreign EU licensees

62. Under Article 5 of the supplementary agreement, ARA
also enjoys the ordinary right
to terminate the ELV
(Article III(1) ELV). The reason given by ARA is the
increased difficulty of carrying out checks on licensees
abroad. ARA also argues that enforcement abroad is
more difficult. Ordinary termination,
is a
precaution for cases where ARA has concrete grounds
for
the party concerned has not
properly fulfilled its contractual obligations, but cannot
the
furnish proof adequate for special
contract under the ELV because of
the difficulties of
gathering evidence abroad.

suspecting that

termination of

says,

it

59. Article

IV deals with ARA rights

and obligations
regarding information and monitoring. ARA monitors
licensees by the BRGs and their
the dispensation of
disposal partners.
the
licensee's reports, e.g. by checking the relevant business
documents.

It can verify the accuracy of

4.1.2. Dispensation and licence agreement

for

service packaging

(‘ELVS’)

4.2. Waste disposal contracts

4.2.1. The relationship between ARA and BRGs

63. Between 25 August 1993 and 30 September 1993 waste
disposal contracts were concluded between ARA and all
BRGs covering the entire territory of Austria. The
contract with ARGEV was notified as a model.

60. The dispensation and licence agreement

for

from the

standard agreement

service
packaging differs
for
transport and sales packaging in that Article I(2) of the
ELVS obliges the licensee to participate in ARA system in
respect of all packaging falling under the Packaging
Ordinance for which the BRGs have given collection
and/or recycling guarantees or in respect of which his
customers wish to obtain dispensation through him. So
depending on his customers' wishes,
the licensee can
conclude a dispensation and licence agreement for only

64. Under the terms of Article 1(1), the contract covers the
disposal of the packaging listed for each BRG in the
guarantee statements (Annex 2 to the waste disposal
contract). Disposal
and
comprises
transport
sorting and conditioning in
as well
accordance with the Packaging Ordinance and with
reference
concluded
between ARA and the local authorities (Annex 3 to the

framework

agreement

collection

to the

the

as

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contract); in particular the objectives and quotas indicated
least — be
in the Packaging Ordinances must — at
the disposal
attained proportionally. ARA receives
services provided by BRGs under Article 1(3)
in its
own name, but in the interest and on behalf of the
licensee;
it thus acts as trustee for the licensee. Under
Article 1(5) the BRGs are required to take back or take
in, free of charge, all packaging for which a contract
exists between ARA and licensees. As authentication of
payment of the licence charge, ARA awards the protected
Green Dot mark. Regarding this point, ARA has
explained that Article 1(5) has no practical significance.
In particular, the distinguishing methods used by under-
takings in the ARA system in order to decide whether a
given item of packaging may be brought into the ARA
system or not are quite separate from the Green Dot. The
provision, it says, does not entail any legal consequences.

65. Where a BRG employs subcontractors to perform its
disposal tasks, it must, under Article 4, require them to
fulfil its relevant contractual obligations. When awarding
new contracts to subcontractors, BRGs must observe the
principles of
free competition and apply reasonable
economic criteria. However, it must take account of the
provisions of the framework agreements concluded by
ARA with local authorities concerning the selection of
the collector/sorter. In addition, the BRG must put new
contracts with subcontractors out to tender. ARA has the
right to inspect the tender documents and bids.

66. Under Article 5 the BRG enjoys exclusive rights for the
duration of the contract in the territory covered, i.e. the
whole of Austrian territory. The BRG undertakes not to
set up, operate or participate in any other collection or
recycling system within the meaning of the Packaging
Ordinance besides the ARA system or to carry out any
active disposal that falls under the responsibility of other
BRGs. The BRG recognises ARA's position as the sole
is
intermediary between the BRGs and licensees, but
not precluded from holding direct talks or concluding
contracts with licensees where necessary to fulfil their
the BRG may not conclude
contractual obligations;
the
contracts with licensees entailing dispensation of
licensee.

resulting in one
not correspond to the true costs,
packaging material being treated more or less favourably
than another (Article 6(4)). The fee is set in advance by
ARA on a proposal by the BRG, as a general rule for one
calendar year at a time. Article 6(13) contains a most-
favoured clause, under which the BRG grants ARA most-
favoured treatment, meaning that it undertakes not to
offer or carry out services comparable to contractual
disposal services or parts of such comparable services
to a third party on terms more favourable than those it
offers ARA or its licensees.

68. Contracts between ARA and the BRG are concluded for
an indefinite period. The BRG is required to provide
disposal services under the contract from 1 December
1993. Under Article 7B the contract can be terminated
by either party at the end of the calendar year, with 12
months' notice. The parties' ordinary right to terminate
the contract does not apply until after 31 December
2000.
another ARA enterprise offered cheaper
services, ARA enjoyed the right to terminate in certain
circumstances even before 31 December 2000.

If

69. Under an agreement of 23 January 2001 with ARGEV
and ARO, ARA agreed that the waste disposal contracts
concluded with the two BRGs between 24 August 1993
and 30 September 1993 could not be terminated
ordinarily before 31 December 2003. Article 7C deals
with the right to terminate the contract without notice
on serious grounds. For instance, the contract can be
terminated without notice if the contract or the ARA
system does not obtain a required authorisation from
the antitrust authorities.

70. Under Article 11 ARA is granted the right to inspect the
collection and disposal
facilities or other facilities of
BRGs covered by the contract during normal working
hours after giving advance notice. This right to inspect
also applies to subcontractors working for BRGs. ARA
also has the right to inspect BRGs' business documents,
subject to advance notice, if it deems this necessary to
verify that the contract is being performed properly by
the BRG. Under Article 12 the BRG also enjoys a right to
information and a right of inspection.

67. Under Article 6 the fee for the disposal carried out by
BRGs is the share of the licence charges charged by ARA
for their services minus a mark-up for ARA. In practical
terms, the fee is based on the costs necessarily incurred in
the disposal of used packaging material. Under Article
6(4)
in cross-subsidies between
BRGs and ARA in the packaging-material-specific calcu-
lation. Cross-subsidies are defined as fixing a fee that does

this must not result

71. Section 13 lays down reciprocal reporting obligations for
the BRGs must give ARA
the contracting parties:
quarterly and annual reports on the disposal they carry
out; ARA is required to provide BRGs with regular
information on the number and size of contracts
concluded with licensees
and on the quantity of
packaging put into circulation by licensees.

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72. Section 14 provides that disputes between the parties are
to be settled by an arbitrator or an arbitration tribunal.

licence fees,
observe discretion, and an agreement on arbitration.

the duty to supply information and to

in question. For

type of waste material

73. Under Section 15 the recycling of packaging is to be
handled by the BRG responsible for the recycling of
the
this
purpose, ARA is required to conclude an essentially
similar waste disposal contract with each of
those
BRGs, defining the BRGs' disposal tasks as the recycling
of the packaging specified. There is also provision for
conclusion of a contract between ARGEV and each
relations
BRG responsible
between the two firms,
the
disposal services owed to ARA by ARGEV and by the
BRG responsible. In particular, the contract should ensure
that ARGEV and the BRGs together provide complete
transport and sorting to
disposal — from collection,
recycling — and that no gaps
in disposal occur
between ARGEV and the BRGs.

specifically as

governing

recycling

regards

for

4.2.2. BRG-BRG relations

74. Since ARGEV is responsible only for organising collection
and sorting, it has concluded cooperation contracts with
other BRGs (ÖKK, Alurec, FerroPack, AVM and VHP)
responsible for organising recycling. ARGEV's contracts
with ÖKK and Alurec were notified as model contracts.

4.2.2.1. Cooperation contract between ARGEV and ÖKK

75. This contract, concluded on 9 March 1994, governs
relations between ARGEV and ÖKK as regards demar-
cation and the complete performance of
the disposal
services due from ARGEV and ÖKK to ARA.

76. Under Article 1, point 1(2) ARGEV organises the estab-
lishment and continuous operation of a country-wide
collection, sorting and conditioning system for packaging;
it undertakes
sorted
the ARGEV collection
packaging
system. ÖKK organises adequate and suitable recycling
capacity or temporary storage facilities and transport
between the ARGEV partner
and the
recycling or storage facility.

to make available to ÖKK all

concerned

collected

under

78. Article 4 stipulates that ARGEV becomes the owner of
the packaging collected through its system. From the
moment packaging in accordance with the specifications
is accepted by the storage or recycling facility, ownership
passes to ÖKK.

79. Under Article 15 the parties undertake not to set up,
operate or participate in any other collection and
recycling system within the meaning of the Packaging
Ordinance outside the ARA system during the lifetime
of the contract, except with the express consent of the
other party. ARGEV further undertakes not to pass on
the packaging to a third party without ÖKK's consent
during the lifetime of
the contract. Similarly ÖKK
undertakes not to take packaging from a third party
without ARGEV's consent. These exclusivity provisions
expressly
agreements with self-
disposers, provided this is compatible with the waste
disposal contracts concluded with ARA. The parties
also undertake not
to perform any active disposal
falling within the area of responsibility of the other party.

reciprocal

exclude

80. Article 16 stipulates that the contract is to run for an
indefinite period from 1 October 1993. The contract can
be terminated by either party at the end of a calendar
year, subject to 12 months' notice. Ordinary termination
is not possible before 31 December 2000. Under Article
17 the contract may be terminated on serious grounds.

4.2.2.2. Agreement between ARGEV and Alurec

81. This contract, concluded on 20 January 1994, governs
performance of the contractual obligations on ARGEV
In terms of subject matter
and Alurec vis-à-vis ARA.
and the terms and conditions it is broadly similar to
the contract between ARGEV and ÖKK.

82. Under Article II ARGEV undertakes to make available all
packaging collected by it or its subcontractors. In Article
III, Alurec undertakes to ensure the proper recycling of
the packaging accepted by ARGEV or the sorting firms.

77. Under the terms of Article 2, ÖKK guarantees ARGEV
that it will accept packaging provided by ARGEV or its
contractors in accordance with the contract. The contract
also lays down obligations regarding the provision and
acceptance of used material and the quality of packaging,
proof of licensing, the principles for calculating the ARA

83. Article V stipulates that ARGEV undertakes to pass on all
the packaging in question collected by it or its subcon-
tractors solely to Alurec for the duration of the contract.
Alurec in turn undertakes
to accept and send for
recycling only packaging collected by ARGEV or its
subcontractors.

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84. As regards ownership the same applies as in the coop-
eration agreement between ARGEV and ARO — even
though this is not specifically regulated in the contract
between ARGEV and Alurec. Ownership of the goods
collected rests first with ARGEV, and then passes to
Alurec when the goods are transferred to it.

85. Under Article VI the contract is to run from 1 October
1993 for an indefinite period. The contract can be
terminated by either party at
the end of a calendar
year, subject to 12 months' notice. Ordinary termination
is not possible before 31 December 2000. Under Article
VII
the contract can also be terminated on serious
grounds.

4.2.3. Relations between BRGs and regional partners

86. These are the contracts concluded by ARGEV and ARO
with the regional disposal companies or local authorities.
The
actual disposal of used
packaging.

contracts govern the

4.2.3.1. ARGEV agreement

87. In the original version of ARGEV's agreement with the
regional partner (‘partner agreement’), which dates from
1994, the regional partner undertakes, in Article 2(2), to
set up a collection, sorting and conditioning system
under the terms of the agreement. Only one regional
partner is contracted per collection region.

similar

packaging

accumulating

88. The collection of packaging waste from households and
establishments
is
organised by the regional partner in consultation with
the local authority. Subcontractors may be brought in
under Article 2(3) subject to ARGEV's approval. Under
Article 2(7) waste is collected in containers provided
either by the regional partner or by the local authority.
Under Article 3 the costs for the collection containers
and for setting up a collection infrastructure are reim-
bursed through a payment by ARGEV.

89. Article 2(10) states that since the regional partner collects
used material for ARGEV, it acquires ownership of the
through collection solely on behalf of
used material
the regional partner may not
ARGEV. Consequently,
in any manner other than that
treat the used material
provided for
any contravention
agreement;
in the
constitutes grounds sufficiently serious for ARGEV to
terminate the agreement without notice.

90. Under Article 2(16) ARGEV guarantees, by means of
bilateral contracts with recycling guarantors,
to take
back the used material made available by the regional
partner in accordance with the agreement. The regional
partner must keep the used material in storage ready to
be taken back and inform ARGEV and/or the recycler
designated either by ARGEV or by the
recycling
guarantor responsible without delay that it is ready to
be taken back.

91. Under Article 2(18) agreement with the local authority
In the event of
responsible should always be sought.
disputes, Article 2(21) provides for an arbitrator to be
called in.

the calendar year, subject

92. The agreement started to run from 1994 for an indefinite
period, and can be terminated by either party at the end
of
to 12 months' notice.
Ordinary termination before 31 December 2000 was
not possible.
If another enterprise offered the same
services to ARGEV more cheaply, ARGEV had the right
to ordinary termination before 31 December 2000
subject to certain conditions. Article 4(2) governs the
right to terminate without notice on serious grounds.

93. All ARGEV's

under Article C of
regional partner.

legal and contractual obligations listed
the preamble also apply to the

94. ARGEV had

clauses

under
agreed most-favoured
supplementary agreements or addenda to the existing
waste disposal contracts with practically all the disposal
companies with which it has contractual
In the
undertaking given in point V(1), ARGEV waived the
right
to apply these most-favoured clauses from 29
November 2000.

ties.

95. In the new version of the agreements governing relations
with disposers, a distinction is now made between sorting
and collection partners;
there is a separate standard
for each. The two agreements are broadly
contract
similar to the original agreement, but are set out
in
greater detail.

except

in the

96. Both standard contracts came into force on 1 January
2002,
three municipalities,
case of
Vienna, Linz, Salzburg, where the contracts had already
come into force earlier; essentially they correspond in
substance
contracts
dating from 1993/1994 are no longer in force.

standard contracts. The

to the

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97. The agreement with the collection partners governs
services
between ARGEV and
concrete
reciprocal
collection partners
in implementing the Packaging
Ordinance as regards ‘collection’, ‘transhipment’ and ‘indi-
vidual enterprise disposal’. Only one regional partner is
contracted per collection region.

yards and from collected problem waste. Besides the
basic infrastructure of
transfer points,
under Article 2(4)(2) the collection partner must offer
pick-up systems for licensed packaging from the point
where the waste occurs, especially in regions with a
large commercial sector.

the regional

98. According to Article 1(2) the agreement covers the estab-
lishment and smooth operation of a collection system for
used packaging in a specified collection region. Under
Article 1(6) ARGEV reserves
to collect
non-packaging waste under the collection system; the
provisions of the contract apply to such waste mutatis
mutandis.

right

the

99. Under Article 2(2) waste from the household sector is
collected together with waste
from establishments
accumulating similar packaging. Such establishments
may be commercial or institutional sources; they must
the
register
packaging concerned will be 100 % ARA-licensed;
if
licensing is less than 100 % the waste must be disposed
of as commercial waste.

for collection each year and show that

100. Under Article 2(2)(3) ARGEV must arrange the provision
of
the necessary sites with the local authority in a
separate agreement. The collection containers and sacks
are provided by the collection partner or
the local
authority after consulting ARGEV. Under Article 2(2)(4)
the costs are borne by ARGEV only for containers for the
household sector, but not for establishments accumu-
lating similar packaging.

101. Under Article 2(2)(5) collection comprises the regular
emptying of containers and collection of sacks, together
with transport of the waste collected to the specified
sorting facility or
to a transhipment station in the
catchment area covered by the contract. The volume of
collected waste to be supplied by the collection partner is
based on actual requirements,
i.e. depending on the
behaviour of the local population or source, subject to
collection
an average utilisation rate of 80 % for
containers and sacks and a maximum error
rate of
20 % in terms of mass. If commercial packaging is also
collected together with the household collection, these
are to be separated as specified by ARGEV (Annex 2).

103. Under Article 2(5)(1), ARGEV's prior consent is required
in order to subcontract out specific tasks under the
agreements.

104. Article 2(5)(2)

the collection partner
that
stipulates
the packaging on behalf of
merely takes charge of
it.
acquires ownership of
ARGEV and so never
the regional partner may not
the
treat
Consequently,
in any manner other than that provided
used material
for
in the agreement; any contravention constitutes
grounds sufficiently serious for ARGEV to terminate the
agreement without notice.

105. Under Article 3(1)

collection containers

the collection partner

receives a
quarterly fee for the collection containers and sacks
provided and documented, based on container/sack size.
emptying
In return for
and
collecting sacks
from households and similar estab-
lishments, transporting and emptying collected waste at
a sorting facility or transhipment station and producing
the required reports, the collection partner receives a fee
based on the quantity in question. For the transhipment
of collected waste from households and similar estab-
lishments in the area covered by the agreement and for
producing reports, the collection partner receives a fee
based on the quantity involved. There is a ceiling on the
collection and transhipment services chargeable annually
to ARGEV per collection region and type of waste
collected. The framework quantity for 2002 to 2004
inclusive was calculated on the basis of
the 2001
forecasts for the gross quantity to be collected from
households and similar establishments.
In return for
taking over and collecting packaging waste accumulating
in businesses, including input control, re-sorting, condi-
tioning, temporary storage, making available, loading, etc.
of types of wastes taken by the recycler from commercial,
industrial and institutional sources and from controlled
the
take-overs and collections of problem materials,
collection partner receives output fees based on quantity.

102. For the commercial sector individual enterprise disposal
applies. Under Article 2(4)(1)
the collection partner
operates a regional transfer point to take back, free of
charge, ARGEV-packaging from commercial
sources,
transferred from recycling
from controlled material

106. Under Article 3(5) ARGEV guarantees, by means of
bilateral contracts with recycling guarantors,
to take
back all used material made available by the regional
partner in accordance with the agreement.

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107. Under Article 5(1) the agreement began to run from 1
January 2002. It was concluded for an indefinite period
and can be terminated by either party giving six months'
notice, but not before 31 December 2004. Both parties
to terminate on serious
also have the special
grounds;
instance, gross
disregard of the obligation to keep commercial waste
separate in household collection.

such grounds

include,

right

for

from collection partners or

from
collection only
collection regions specified in Annex 5. Under Article
2(2) the sorting partner must, at the site of the sorting
facility, operate a regional transfer point where packaging
from recycling
from commercial sources (Module 3),
yards
(Module 4) and problem material collections
(Module 5) is accepted free of charge.

108. Regarding the term of the contract, ARGEV has entered

into the undertaking set out at point V(4).

109. ARGEV has also stated that

the collection partner
agreements do not contain any exclusivity obligations
on disposers, either in the near-household or commercial
sectors. Disposal companies are free to provide similar
services for other dispensation systems or as part of self-
disposal solutions. As regards shared use of collection
containers, ARGEV has entered into the undertaking set
out at point V(3).

110. The standard agreement for sorting partners very closely

resembles the agreement for collection partners.

and

similar

111. Under Article 1(5) ARGEV entrusts the task of operating
collection systems for light and metal packaging from
households
in defined
collection regions (as a rule political subdivisions or
major cities) throughout the country to the collection
partner responsible. The quantities collected by collection
partners are transferred direct or via a transport company
to the sorting partner. Only one sorting partner
is
contracted per collection region.

establishments

112. In order to optimise the collection, sorting and transport
the quantities collected by certain collection
system,
partners or from certain collection regions are allocated
to certain sorting partners or sorting facilities under
Article 1(6). Through corresponding provisions in the
separate collection partner agreements, ARGEV will
ensure
collected by collection
partners from households and similar establishments in
certain collection regions (as specified in Annex 5 to the
agreement) are sorted only in the collection partner's
sorting facility.

the packaging

that

113. Under Article 2(1)(1) the sorting partner is required to
take and sort all quantities of packaging made available
or collected from households (Module 1) and similar
establishments (Module 2) by the collection partner(s)
in the collection regions. The sorting partner must take
unsorted waste collected under Modules 1/2 ARGEV

114. Under Article 2(4)(2) the sorting partner merely takes
the packaging for ARGEV and does not,
charge of
packaging.
acquire
therefore,
the sorting partner may not
the
Consequently,
in any manner other than that provided
used material
for
in the agreement; any contravention constitutes
grounds sufficiently serious for ARGEV to terminate the
agreement without notice under Article 5(5)(2)(a).

ownership

treat

the

of

115. The provisions concerning the engagement of subcon-
tractors (Article 2(4)(1)) and the duration/termination of
the contract
to those in the
collection partner agreement.

(Article 5) are similar

116. Under Article 3(1) the sorting partner receives the input
fees indicated in Annex 6 of the contract within the
specified quantity ranges. The input fees constitute the
consideration for taking charge of the collected waste
from the ARGEV household system and near-household
system, input control, a share of the facility's fixed costs
by reference to the agreed annual
input quantities,
removal and proper disposal of intrusive material from
collected waste, and the conditioning, temporary storage,
making available and loading of all output waste types,
free of intrusive material or positively sorted. A ceiling
applies to the sorting input quantity chargeable annually
to ARGEV, being the sum of the quantities collected from
households in certain collection regions. For positive
sorting of output waste types from households and
similar
receives
specific fees for each type of material. These output
fees also apply to the acceptance of deliveries,
input
temporary storage,
control,
loading etc. of specified waste types
making available,
from business
recycling yards and problem
material collections.

establishments,

conditioning,

re-sorting,

collection

sources,

partner

117. ARGEV has

the

also stated that

sorting partner
agreements do not contain any exclusivity obligations
on sorting partners. Disposal companies are free to
provide similar services for other dispensation systems
or as part of self-disposal solutions. ARGEV has also
entered into the undertaking set out under point V(3).

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4.2.3.2. ARO agreement

ARO — collection partners

the packaging handed in is licensed with ARA.
that
Additional transfer points must be authorised by ARO.

118. The agreement concerns the operation of a collection
system for paper packaging to satisfy the obligations
flowing
the
the ARA/ARO waste disposal
Packaging Ordinance,
contract
authorisations. Only one
regional partner is contracted per collection region.

from the Waste Management Act,

and the official

119. Under Article 1(1) the agreement does not cover the
collection of waste paper and paper packaging from
accumulating similar
households
it
waste. Rather
street disposal
(Article 2(4)),
transport of packaging from recycling
yards (Article 2(5)) and individual enterprise disposal
(Article 2(6)).

and establishments
covers

commercial

If
the

this means that

official
sufficient

120. Under Article 1(5) ARO's take-back obligation is confined
cardboard, board and
to the quantity of paper,
corrugated-board
licensed with ARA.
packaging
However, ARO is prepared to take the entire quantity
of packaging delivered to the collection and recycling
it overruns its obligations
system.
namely making
authorisation,
under
available
paper
for
take-back
packaging, with a coverage quota of 90 % in the
commercial sector and 80 % in the household sector,
and a recycling quota of 85 % in the commercial sector
and 75 % in the household sector, and conflicts with the
licensee's economic and legal interests, ARO reserves the
its take-back guarantee and the corre-
right
to the requirements of
sponding fee payments
the
official authorisations;
the collection partner must be
informed accordingly in good time.

to adapt

capacity

123. Under Article 2(8) ARO decides on the disposal
companies and the transport arrangements for packaging.
The partner must
therefore secure written agreement
with ARO in this respect. The collection partner guar-
certain minimum quality of paper
antees ARO a
packaging on delivery to the recycler (Article 2(9)).

124. Article 2(10) states that the partner collects the paper
packaging for ARO and that
the collected waste is
therefore the sole property of ARO. Consequently, the
material collected may not be treated in any manner
other than that provided for in the agreement; any
contravention constitutes grounds
sufficiently serious
for ARO to terminate the agreement without notice.

125. Under Article 2(15) ARO guarantees, by means of its
bilateral contracts with recyclers, to take from collection
partners the paper packaging they present and ensure its
proper recycling according to the type of packaging.
Should the recycling guarantees given to ARO be
withdrawn,
it must ensure an adequate substitute for
disposal companies.

126. Under Article 4 the agreement started to run from 1
January 2002 for an indefinite period. Subject
to six
months' notice,
it can be terminated with effect from
31 December 2004. It can also be terminated without
notice on serious grounds.

127. Regarding the term of the contract, ARO has entered into

the undertaking set out under point V(4).

121. Commercial street disposal concerns

the disposal of
pure-paper packaging from small business
sources.
What are known as supervised take-back sites (recycling
yards, used material etc.) are run by the local authority
and take packaging from private individuals and small
takes
business
its
packaging
removal. For
the ARO
disposal partner operates what are known as ARO
transfer points, where business sources can bring their
packaging in to the collection and recycling system free
of charge.

sources. The ARO collection partner

individual enterprise disposal

from recycling

and handles

yards

122. Under Article 2(7) the collection partner is required to
take all paper packaging covered by the agreement at the
ARO transfer points. Article 2(7)(4) stipulates that the
business source must confirm by appropriate means

128. ARO has

the

also stated that

collection partner
agreements do not contain any exclusivity obligations
on collection partners. Collection partners are free to
provide similar services for other dispensation systems
or as part of self-disposal solutions.

ARO — local authorities

paper

systems

129. The agreement concerns cooperation between ARO and
the local authority in the operation of the municipal
waste
from
for
accumulating similar
households
packaging waste in the area covered by the agreement.
Account is taken of the obligations stemming from the
Waste Management Act, the Packaging Ordinance, the
ARA-ARO waste disposal contract and the official auth-
orisations.

and establishments

packaging

paper

19.10.2002

EN

Official Journal of the European Communities

C 252/15

130. Under Article 2(1) ARO's take-back obligation is confined
cardboard, board and
to the quantity of paper,
corrugated-board
licensed with ARA.
packaging
However, ARO is prepared to take the entire quantity
of packaging delivered to the collection and recycling
system, subject
in line
with the obligations under the official authorisation, of
which the local authority must be informed in good time.

to retrospective readjustment

131. In the municipal waste paper collection run by the local
authority, packaging together with non-packaging from
the same material
(newspapers, magazines, catalogues,
etc.) is collected regularly under Article 2(2). The share
of the costs for collection of paper, cardboard, board and
corrugated-board packaging is borne by ARO; the other
costs of municipal waste paper collection are borne by
the local authority.

132. Under Article 2(4) fundamental changes to the collection
system described in the collection scheme (e.g. switch
from a bring-it-yourself to a collection system) must be
agreed between the local authority and ARO if it entails
substantially higher costs for ARO. The local authority
takes charge of putting the collection services out to
tender or
renegotiating them after consulting ARO.
Selection of the disposal company (collector) rests with
the local authority.

together with

collection (Article 3(1)); providing sites

133. The local authority must provide the following services:
collecting paper packaging as part of the municipal waste
paper
for
collection containers
the necessary
permits (Article 3(2)); providing and maintaining the
collection containers (Article 3(3)); taking packaging via
supervised recycling yards, used-material centres, etc.
(Article 3(4)); and guaranteed quality of packaging plus
bearing the cost in the event of the need for re-sorting
the packaging taken over in the recycling yards (Article
in
3(5)).
its part, ARO guarantees
accordance with the Packaging Ordinance
through
bilateral contracts with recyclers (Article 3(6)).

recycling

For

135. The local authority may not treat paper packaging in any
manner other than that stipulated by ARO; any contra-
vention constitutes grounds sufficiently serious for ARO
agreement without notice. Paper
to terminate
the
from
be
packaging may
non-packaging material of the same type or mixed with
such material.

separately

recycled

136. Under Article 5(1) the contract begins to run from 1
January 2002 for an indefinite period and can be
terminated no earlier than 31 December 2003, subject
to six months' notice. It can also be terminated without
notice on serious grounds.

137. The contract contains no provision ruling out the possi-
bility of another collection and recycling system sharing
use of the municipal waste paper collection containers.
ARO has stated that for the most part in the sector of
collection it purchases only
near-household paper
quantities
is no
obvious reason, it says, why the local authorities should
not conclude similar agreements with other dispensation
systems.

collection. There

from municipal

5. UNDERTAKINGS GIVEN

it had reservations
138. The Commission indicated that
regarding the implications
some
aspects of the contracts notified. In the course of the
procedure the parties have given the Commission the
following undertakings:

for competition of

— (Undertaking 1) With effect from 29 November 2000
ARGEV and ARO will refrain from invoking the
most-favoured
in
supplementary agreements or addenda to the waste
concluded with the disposal
disposal
companies with which the company concerned had
contractual relations.

clauses which were

contracts

agreed

and establishments

134. Article 3(7) governs the transfer of ownership of the
packaging: as regards packaging waste collected from
households
accumulating similar
waste, ownership passes from the local authority to
ARO on delivery of the packaging to the ARO transfer
point. Ownership of material collected under supervision
in recycling yards, used-material centres, etc., passes to
ARO when it is picked up by the ARO disposal partner;
if the local authority provides transport, ownership does
not pass from the local authority until acceptance by the
ARO transfer point.

— (Undertaking 2) ARA undertakes not to invoke its
licence rights to the Green Dot mark vis-à-vis firms
inside or outside Austria (a)
that participate with
similar packaging in collection and
marked or
recycling systems within the meaning of Directive
94/62/EG on packaging and packaging waste which
require the use of the Green Dot; or (b) that are
required by regulations to affix the Green Dot to
packaging. This obligation applies provided that the
firm concerned can show that it collects and recycles
the packaging marked with the Green Dot in Austria
in accordance with the Packaging Ordinance (BGBl.
No 648/1996, as amended) — whether by means of a

C 252/16

EN

Official Journal of the European Communities

19.10.2002

rights

solution within the meaning of

the
self-disposal
Packaging Ordinance or by participating in an auth-
orised collection and recycling system — and grants
ARA the
by
corresponding monitoring
contract. The monitoring rights may not extend
beyond the rights granted under the standard ARA
contract. In exercising these monitoring rights, ARA
impose requirements stricter in terms of
will not
providing evidence
that collection and recycling
comply with the Ordinance than the obligations of
authorities
the
firms
responsible for
the Packaging
Ordinance.

implementation of

concerned

vis-à-vis

the

local

and/or

prevent

authorities

— (Undertaking 3) ARGEV will not prevent local auth-
orities and/or disposal companies from working for
competitors of the ARA system. Further, ARGEV will
not
disposal
companies from concluding and fulfilling contracts
with competitors of the ARA system concerning the
shared use of containers or other facilities for the
collection and/or sorting of used packaging from
households and similar establishments. This under-
to enforce
taking does not restrict ARGEV's right
contractual arrangements for the shared collection
and recycling system and to take all necessary
measures to fulfil its obligations as a collection and
recycling system, whether imposed by the law or by
in spite of shared use.
the official authorisations,
Furthermore, this undertaking applies only if:

containers

and other

(a) the local authorities and/or disposal companies
declare their willingness to reduce the charges
to be paid by ARGEV for the provision and
operation of collection/sorting facilities, and/or
in proportion to the use
for collection/sorting,
of
to
reimburse ARGEV an appropriate share of the
other costs directly attributable to collection/
is, costs for ongoing engineering
sorting (that
and management
collection
system, costs for waste consultants, costs for
R & D, etc.); ARGEV will produce an attestation
accountant
from an
regarding the amount and chargeability of
the
costs charged;

independent

chartered

facilities,

shared

and

the

of

(b) the local authorities and/or disposal companies
declare their willingness to reimburse ARGEV

a

the

costs

incurred

additional

the
by
for
their
in the ARA system and/or
companies
(for
shared use
contractors
result of
as
sorting
instance, additional analysis
costs or
the
costs in order to maintain the quality of
packaging collected and sent
for recycling on
behalf of ARGEV). ARGEV will produce an attes-
tation from an independent chartered accountant
regarding the amount and chargeability of
the
costs charged. Additional costs incurred by the
companies
their
contractors simply by virtue of reductions in the
licensed quantity will not be taken into account.

in the ARA system and/or

This undertaking will be implemented on a case-
by-case basis through supplementary agreements to
individual service contracts.

— (Undertaking 4) ARGEV and ARO will terminate their
contracts with disposal partners when the contracts
three years, unless the contracting
have run for
parties agree on extension of the contract
for no
more than a further two years. No later than at the
end of a five-year contract period ARGEV and ARO
will again put the service contracts out to tender
through a competitive,
transparent and objective
procedure (invitation to tender of whatever kind, invi-
tation to submit quotations, etc.).

6. FURTHER COURSE OF THE PROCEEDINGS INITIATED BY

THE COMMISSION

139. The Commission intends to raise no objection to the
notified agreements under Article 81 of the EC Treaty
and Article 53 of the EEA Agreement, or to grant the
parties exemption under Article 81(3) of the EC Treaty
and Article 53(3) of the EEA Agreement, possibly with
takes a decision, all
conditions attached. Before it
interested third parties have the opportunity to submit
their observations within one month of the publication
of this notice, quoting the reference ‘COMP/A.35.470/D3
— ARA’ and ‘COMP/A.35.473/D3 — ARGEV, ARO’, to:

European Commission
Directorate-General for Competition
Directorate D — Services
B-1049 Brussels
Fax (32-2) 295 30 80.