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New clearing contracts ensure functional clearing

Old contracts invalid from 2018

Cologne, 15 November 2017

There are new developments in the dispute over clearing contracts and missing quantities. In an article written in her private capacity for the journal “Zeitschrift für das Recht der Abfallwirtschaft”, Eva-Maria Schulze, chair of the 5th Decision-making Department at the German Federal Cartel Office, analyses the current situation in the clearing centre and arrives at a clear conclusion: The new contracts signed by Reclay, Der Grüne Punkt, BellandVision and Interseroh would comply with requirements by cartel law and could therefore become valid from 2018. By contrast, the old clearing contracts are said to be non-compliant with cartel law and may no longer be performed from January 2018 onwards. Ms Schulze also dispels the argument that the new contracts could not be valid because not all dual-stream system operators have signed them. She explains that it is fully possible that several clearing contracts exist in parallel.

At the same time, the District Court of Cologne prohibited system operator ELS from underreporting quantities to the clearing centre. This specifically involves ELS classifying their clients’ packaging quantities into various packaging categories, without the clients requesting it themselves and correspondingly without them having exact knowledge of it. As a result, ELS reported lower quantities to the clearing centre than actually required in the participation obligation.

“The verdict of the District Court of Cologne supports all system operators that perform licensing properly and that in turn ensure the stability of the overall system. We also welcome the clarification by Ms Schulze and are delighted that she shares our legal opinion. Instead of tinkering with the old contracts, ELS, Noventiz and RKD should enter into the new contracts to facilitate a functional clearing in the interest of our customers from the trade and industry sectors,” explains Raffael A. Fruscio, Managing Partner of the Reclay Group. In an apparent reaction to the statements made by Ms Eva-Maria Schulze, the three system operators announced that they have once again amended the old clearing contracts by adding new provisions. “It is inexplicable why ELS, Noventiz and RKD are still trying to resolve the fundamental problem of the old clearing contract, even though a solution is long since available in the new contract. Such behaviour greatly damages the industry,” says Mr Fruscio in conclusion.

About the Reclay Group

The Reclay Group is an internationally operating service provider in the field of recycling and recyclables management. With a workforce of 220 employees based at 12 locations worldwide, the medium-sized, owner-led group helps over 3,000 customers from industry, trade and commerce achieve their environmental goals and fulfil their product responsibility. The Reclay Group develops individual take-back and recycling schemes for different types of waste, such as sales and transport packaging, and advises companies and governments on establishing waste management systems. The group also manages the processing and use of recycled materials, thus supplying the economy with important secondary raw materials. Specialist subsidiaries cover the entire value chain of waste management and recycling – with the aim of keeping recyclable materials in a closed loop system for as long as possible. The group was founded in 2002 by principal shareholders Martin Schürmann and Raffael A. Fruscio. In the 2016 financial year, the Reclay Group generated sales of €171 million.