On September 13, 2022, the ICA accepted the commitments offered by Consorzio Polieco (“Polieco”), the consortium for the recycling of polyethylene waste goods.[1]

On August 31, 2021 the ICA opened proceedings against Polieco for allegedly abusing its dominant position on the national market for the management of the recycling of polyethylene waste goods, instrumental to meeting the Extended Producer Responsibility (EPR) obligations.

EPR obligations are based on the polluter pays principle and require producers, importers, distributors, users, recyclers and recoverees of polyethylene goods to establish a system for managing such waste goods, and to finance the related activities.

Polieco has operated since 1997 as a monopoly for the recycling of polyethylene waste. Producers, importers, distributors, users, recyclers and recoverees of polyethylene goods can join the consortium, which carries out the collection and recycling of goods at the end of their life cycle. All such operators are required by law to pay contributions to Polieco, in the absence of autonomous management systems effectively operating.

The ICA considered that Polieco had abused its dominant position by preventing the only competitor, Consorzio Ecopolietilene (“Ecopolietilene”), from entering the market. The allegedly abusive strategy of Polieco consisted in obstructing the establishment of Ecopolietilene, and in discouraging in various ways undertakings from withdrawing from the Polieco and joining Ecopolietilene. In particular, Polieco sought to fully recover past contributions due from undertakings that were not members of any consortia, or that had already joined Ecopolietilene, while it granted the possibility to pay only a part of such past contributions to the undertakings that accepted to become (or that were already) its members.

On January 20, 2022, Polieco offered commitments to the ICA. Among the remedies, Polieco offered to scrap discriminatory conditions, including more favorable conditions that had been on offer to producers of polyethylene goods that were registered or intended to register with Polieco. Most interestingly, Polieco committed to establish a fund that would collect all the past contributions due from the undertakings active in the chain of polyethylene-based goods and of the waste generated by them, irrespective of whether they were payable to Polieco or Ecopolietilene. Such fund, established as a trust, is intended for the management of environmental emergencies.

The ICA found that Polieco’s commitments were suitable to overcome its competitive concerns. Moreover, the ICA stated that the establishment of a fund intended for the management of environmental emergencies demonstrates a positive complementarity between competition rules and sustainability goals. The commitments offered by Polieco were considered capable of protecting the environment and enhancing more efficient waste collection and recycling activity. Hence, the ICA stated that, in the case concerned, the application of antitrust rules also contributed to achieving environmental and sustainability goals. The ICA therefore closed the proceedings.

[1]      ICA, decision of September 13, 2022, No. 30300, case A545, Consorzio Polieco/Condotte anticoncorrenziali.