Competition Commission: Fine of 111,600 euros to ELTEPE

With the no. 741/2021 decision, the Plenary Session of the Competition Commission decided to impose a fine of 111,600 euros on the company ELTEPE SA (now ENDIALE) for violation of articles 2 of law 3959/2011 and 102 TFEU in the market of Waste Lubricating Oils (ALE).

The case concerns the co-examination of the complaints of the companies GREEN OIL SA and E.S.K. OIL BIOLOGICAL PETROLEUM SA, as well as the Association for the Collection of Used Mineral Oils (SOSYCHO), regarding possible violations of articles 1 and 2 of Law 3959/2011 and 101 and 102 TFEU by the companies ELPEPE. ELTEPE JOINT VENTURE and by a natural person, in the market for the management of Waste Lubricating Oils (ALE), including on a case-by-case basis all the management stages, from the collection to the utilization of these oils.

Procedure

The companies GREEN OIL and E.S.K. OIL, as well as SOSYCHO filed complaints before EA against the possible violations of articles 1 and 2 of law 3959/2011 and 101 and 102 TFEU by the complained companies.

The relevant Proposal was notified to the complained companies in January 2021. The hearing before the Plenary Session of the EA took place on 5 May 2021.

Real incidents

The structure of the Waste Lubricating Oils (ALE) market in Greece can be characterized by “phases”, depending on the current legal framework. In particular, before 2004, ie before the institution and establishment of the Collective Alternative Management System (CMS) in Greece, the market had two distinct levels of economic activity: a) the collection of ALE, where collectors were active, and b) the rebirth of ALE , where the exploiters / regenerators were active. Then, after 2004, when ELTEPE SAED ALE started its operation, an additional economic activity was introduced, that of the organization and operation of ALE collection and management systems. The third phase starts after 2013, when the operation of the only ALE ALE that operated in Greece was changed and now the SLE of ELTEPE does not have the role of “intermediary” that buys the ALE from the collectors and resells them to the exploiters, but realizes only the qualitative and quantitative control of the ALS moving in the Greek market, operating as a quasi-“ecosystem” that connects the economic activities of different companies in order to provide services and that affects different groups of users.

All the companies involved in the case are active in the management of ALE. Particularly:

– the complainants ESKOIL and SOSYCHO, as well as the complained ELTEPE JOINT VENTURE are active in the ALE collection market ∙

– the complained ELTEPE SA is, from 2004 onwards, the only licensed collective management system of ALE in Greece (SSED of ELTEPE). It should be noted that during the period 2004-2013, other collective management systems had submitted requests to the competent bodies for their licensing as SED, even if the licensing was not completed.

– the companies GREEN OIL (complainant) as well as CYCLON SA (complainant) are active in the market of regeneration / utilization of ALE.

The complainant companies claimed, inter alia, that ELTEPE had abused its dominant (de facto monopoly) position in the market of organization and operation of alternative AL management systems, through various practices, in order to exclude other players from this market. The complainant companies also pointed out that other companies belonging to the same Group as ELTEPE SA were active in the downstream and upstream markets of the collection and regeneration of ALE, respectively, resulting in the complete sealing of the wider market.

Legal assessment

ELTEPE, during the period 1.1.2004 until 15.1.2013, included exclusivity clauses in its contracts with both companies that were active in the collection of ALE, and with companies that were active in the utilization / regeneration of ALE, abusing its dominant position in the relevant market (ie the market for the organization and operation of alternative ALE management systems). According to EA, the anti-competitive practices found in ELTEPE concern the horizontal foreclosure of its competitors in the market for the organization and operation of alternative ALE management systems, in which the complainant holds a dominant position, as these conditions essentially attempted to lead all the sources of supply to ELTEPE, with the result that another possible Collective Management System could not have access to sources of supply for its activity.

It should be noted that EA specifically considered the possibility of an analysis to substantiate the abusive behavior of the company and the reasons for environmental protection set by the companies as a possible reason, and especially their proportionality, in view of the principles of sustainable development and methodology contained in the recent Technical Report on Sustainability and Competitiveness published by EA in January 2021. However, EA concluded that the complained company did not provide evidence of the objective justification and the need for exclusivity conditions to increase the effectiveness of OL. regarding the protection of the environment and the principles of sustainable development.

Moreover, during the period from 2.8.2004 to 1.8.2008, EA considered that ELTEPE violated the (now repealed) article 2a of law 703/1977 which prohibited the abuse of financial dependence. It is pointed out that other complained practices contained in the complaints (such as the allegation of refusal to supply ALE from ELTEPE to GREEN OIL and the imposition of certain prices on companies operating in the collection of ALE) were rejected by EA as unfounded.

The decision of EA

With the no. 741/2021 its decision, the Plenary Session of EA unanimously decided, following a relevant Proposal, that there is a violation of article 2 of law 3959/2011 as well as 102 TFEU by the company ELTEPE SA, as the company, during the period 1.1.2004 to on 15.1.2013, included exclusivity clauses in its contracts both with companies that were active in the collection of ALE, and with companies that were active in the utilization / regeneration of ALE, abusing its dominant position in the relevant market. For this reason, he imposed a fine of 111,600 euros on the company ELTEPE SA.

Furthermore, it found a violation of article 2a of law 703/1977 (which prohibited the abuse of financial dependence) by the company ELTEPE, for the period from 2.8.2004 to 1.8.2008, without imposing a fine, while it obliged the company ELTEPE SA to omit the detected violations in the future, and threatened it with a fine if a decision of the EA confirms the repetition of the detected violations in the future.

For the rest, EA rejected the complaints of GREEN OIL, ESK OIL and SOSYCHO regarding their other allegations.