21. juni 2006
The Council Meeting 21. June 2006
On 21 June 2006 the Danish Competition Council directed the attention of the Danish Minister for the Environment to national rules on exchange of information in the sector for the handling of waste. According to the Council, it is inappropriate for an undertaking to execute public administrative duties when the undertaking is also an active market player.
The Council’s statement emerged from an application about the undertaking ‘Noveren’. Noveren is owned by nine Danish municipalities and it is commercially active in the businesses of the treatment, disposal, sorting and general management of waste.
On behalf of the nine municipalities, Noveren also registers private undertakings transporting waste produced in the nine municipalities. In addition, the private undertakings shall annually inform Noveren about the quantities and types of waste transported and where the undertakings have collected the transported waste from. According to national legislation, the registration of the private undertakings and the quantities etc. of the waste being transported is incumbent on the Danish municipalities. The gathered information helps the Danish authorities to elaborate national and regional plans for the overall management of waste. The drawing up of waste management plans is also required by EU legislation.
However, due to the delegation of the incumbent duties to Noveren, the private undertakings are compelled to surrender sensitive information about their business to a competitor, i.e. Noveren. As a main rule, the Council finds it imperative that there are Chinese walls between the operations of a commercially active undertaking on one side and public administrative duties involving gathering of sensitive information on the other side.
Regardless of the misgivings of the Council, the Council cannot intervene on the basis of the competition rules. It is the assessment of the Council that the information gathering delegated by the municipalities to Noveren does not involve the element of an economic activity. Instead, the information gathering is rather a task performance of a public nature. Thus, since the gathering of the information falls within the administrative sphere, Noveren is not, in this context, an ‘undertaking’ as this term is defined in the competition rules.
As the competition rules are inapplicable, the Council instead encourages the Minister for the Environment to ensure that private undertakings subject to the legislation on waste management are not compelled to surrender sensitive information to a competitor.
For additional information, please contact head of division Niels Rytter (+45 7226 8097) or head of section Ulrik Lindow Sørensen (+45 7226 8160).