WRITTEN QUESTION E-3776/02 by Christoph Konrad (PPE-DE) to the Commission. Anti-competitive practice in waste management in Germany.
Date: 2002-12-23
Institutions: European Parliament, Provisional data
Subjects: Germany, competition law, dominant position, provision of services, restriction on competition, waste disposal, waste management

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According to the Catalan Government, the 473 cubic hectometres of water that will be diverted in this
way each year will enable the volume of water taken from the Ebro basin to be cut from 1 050 to
577 cubic hectometres.

The plan provides for the extension of the conduit to the regions of Valencia and Murcia, meaning that it
will cover over 1 000 kilometres.

Does the Commission feel that this planned diversion of water from the Rhone basin to the Ebro basin and
beyond squares with sustainable water policy and conforms to Directive 2000/60/EC of the European
Parliament and of the Council of 23 October 2000 (1) establishing a framework for Community action in
the field of water policy?

(1) OJ L 327, 22.12.2000, p. 1.

Answer given by Mrs Wallström on behalf of the Commission

(27 February 2003)

The Commission considers that, in principle, water-related problems should be addressed at source. The
principles of sustainable development and of addressing environmental problems at source, are laid down
in the EC Treaty and taken up as one of the pillars of the Directive 2000/60/EC of the Parliament and of
the Council, of 23 October 2000, establishing a framework for Community action in the field of water
policy, hereafter, the Water Framework Directive.

This Water Framework Directive provides for an obligation for Member States to address their water
problems in shared river basins, but not necessarily for a large-scale water transfer between river basins.

Where specific projects respect the environmental objectives laid down, the Water Framework Directive
would not in any way prohibit such solutions. Nevertheless, they have to comply with the obligations of
the Directive. These include attainment of environmental objectives, provision of sufficient water quantity
in the water destined for abstraction/diversion to enable compliance with good ecological status, respect
for the cost-recovery principle as well as respect for other Community legislation such as the Birds (1),
Habitats (2) and Environmental Impact Assessment Directives (3) by the transfer construction.

Regarding an eventual water transfer Rhône-Barcelona, it should be noted that the information received by
the Commission shows that the project is still at a preliminary stage of discussion. The Commission has
only received as related information the preliminary agreement of the regional Government of Cataluña
(‘Acord de Govern’) on developing a project on the issue. Consequently, the Commission cannot at this
time make any specific assessment of the likely impact of the Rhône-Barcelona project.

(1) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ L 103, 25.4.1979.
(2) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora,

OJ L 206, 22.7.1992.

(3) Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of

certain public and private projects on the environment, OJ L 73, 14.3.1997.

(2003/C 268 E/051)

WRITTEN QUESTION E-3776/02

by Christoph Konrad (PPE-DE) to the Commission

(23 December 2002)

Subject: Anti-competitive practice in waste management in Germany

1.
The towns of Herne, Wuppertal, Remscheid, Bochum, the districts of Ennepe-Ruhr, Recklinghausen
and the municipal association for the Ruhr (KVR) recently founded a waste management association
named EKO-City (as the commissioning agency) and EKO-City GmbH (as the sole contractor). EKO-City

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GmbH is to be responsible for all thermal treatment, for mechanical processing, for pre-treatment and
disposal of household and industrial waste produced in the area covered by the association,

Is the Commission aware of the foundation of this ‘waste management association’ and the limited
company (GmbH)?

2. What view does the Commission take of the fact that EKO-City is to award 100 % of contracts for
waste disposal to EKO-City GmbH, indefinitely and without inviting tenders, which precludes any form of
competition as the private sector is barred from providing waste disposal services from the outset?

3. What is the Commission’s position on the fact that the formation of this dedicated association and
limited company circumvents the mandatory requirement to invite tenders to provide waste disposal
services?

Can the Commission discount the possibility that, in pursuing this practice, the above municipalities

4.
are in breach of European competition law?

Answer given by Mr Monti on behalf of the Commission

(28 February 2003)

The waste management association referred to by the Honourable Member has not hitherto been drawn to
the Commission’s attention.

A contract for the provision of waste disposal services of a value exceeding EUR 200 000 normally has to
be tendered in accordance with the provisions stipulated in Council Directive 92/50/EEC of 18 June 1992
relating to the co-ordination of procedures for the award of public service contracts (1). However, no tender
is required in case of a contract awarded to an entity over which the contracting authority exercises a
control which is similar to that which it exercises over its own departments and, at the same time, that
entity carries out the essential part of its activities with the contracting authority (2).

Whether the transfer of the duty obligation for the provision of waste disposal services to the waste
management association EKO-City fulfils the described conditions for such an exemption from the
obligation to tender would require a thorough analysis of the relationship between the original holders of
the duty obligation and the waste management association. Likewise, the subsequent award of a waste
disposal service contract to the EKO-City GmbH would require an analysis of the relationship between the
waste management association and the EKO-City GmbH. The Commission will commence an examination
of the case and contact the German authorities on this matter.

As to the application of Community competition rules, the Commission takes a neutral position as regards
the public or private status of waste management companies, and Member States may grant exclusive
rights to such companies. However, public companies or companies with exclusive rights have to comply
with the competition rules in the same way as private companies.

In considering whether a Member State infringes Article 86(1) in conjunction with Articles 81 and/or 82 of
the EC Treaty in any particular case,
it is necessary to determine whether the privileged status of a
company leads to anti-competitive agreements or an abuse of a dominant position. In order to be able to
determine whether a dominant position exists, it is necessary for the relevant market to be defined and to
establish that at least a substantial part of the common market is affected. Only if it is found that a
dominant position exists is it then necessary to consider the question of possible abuse. In its ruling in the
Copenhagen case, the European Court of Justice confirmed that the grant of an exclusive right over part of
the national territory for environmental purposes does not in itself constitute an abuse of a dominant
position (3).

It should also be pointed out that Community competition rules only apply where the conduct in question
is liable to affect trade between Member States. Concerning the antitrust rules, Articles 81 and 82 of the EC
Treaty, the Commission has noted that activities affecting the market only insignificantly, and this may be

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the case of a number of services of local character, will normally not affect trade between Member States
and therefore will not be subject to the Community rules (4). Furthermore, Member States are entitled to
apply the principles of proximity and self-sufficiency in the context of waste destined for disposal, so as to
be able to deal with the waste locally. However, certain waste management services provided within the
Community can have some transboundary implications (5).

Under Article 86(2) of the EC Treaty certain restrictive measures of Member States may be justified,
provided that they are necessary to fulfil a task of general economic interest and proportionate. The
European Court of Justice has confirmed in the Copenhagen case (6) that the management of particular
waste may be considered to be capable of forming the subject of a service of general economic interest,
particularly where the service is designed to deal with an environmental problem (7). The crucial question
of proportionality could only be judged after a careful examination of the case.

(1) OJ L 209, 24.7.1992.
(2) Case C-107/98 Teckal, paragraph 50.
(3) Case C-209/98 FFAD v Kobenhavens Kommune [2000] ECR I-3743, paragraph 68.
(4) Commission Communication of 2001 entitled ‘Services of general interest in Europe’, OJ C 17, 19.1.2001, p. 32.
(5) See, in particular, Regulation (EEC) No 259/93 of 1 February 1993, on the supervision and control of shipments of

waste within, into and out of the European Community, OJ L 30, 6.2.1993.

(6) Case C-209/98 FFAD v Kobenhavens Kommune [2000] ECR I-3743.
(7) At paragraph 75 of the European Court of Justice judgement.

(2003/C 268 E/052)

WRITTEN QUESTION P-3785/02

by Bruno Gollnisch (NI) to the Commission

(17 December 2002)

Subject: Labelling in French of consumer products sold in France

On 4 August 1994 it was made compulsory under the law on the French language for French to be used
in ‘all documents intended to inform users or consumers: labels, leaflets, catalogues, brochures and other
information documents’.

On 20 March 2000 it was pointed out in an EU directive (a codification of an earlier one of 18 December
1978) that, under EU law, Member States may not insist upon the use of a particular language for the
labelling of foodstuffs without allowing other languages to be used.

In an opinion following on from a Court of Justice judgment issued on 12 September 2000 in response to
a request from the Lyons Court of Appeal for a preliminary ruling, the Commission told France that it had
a period of two months within which to comply with that aspect of EU law.

By means of Decree No 2002-1025 of 1 August 2002 the French Government duly amended
Article R.112-8 of its rules on consumer products in such a way as to retain the requirement for labelling
in French but also to authorise (in a new subparagraph 2) wording in one or more other languages.

Does the Commission consider this amendment to the rules to be sufficient from the point of view of the
above-mentioned EU law?

In other words, can a Member State retain the legitimate right to require the labels on foodstuffs sold
within its territory to be written at least in its national language?

Answer given by Mr Bolkestein on behalf of the Commission

(20 January 2003)

On 17 July 2002 the Commission decided to send a reasoned opinion inviting the French authorities to
bring French law into line with the Court of Justice judgment of 12 September 2000 in Case C-366/98
Geffroy [2000] ECR I-6579 concerning the use of a particular language for the labelling of foodstuffs.