Dublin’s four local authorities had breached competition law by abusing their dominant position in the household waste collection market in a bid to remove rival private operators, a High Court judge has ruled.
Mr Justice Liam McKechnie today quashed a variation to the Dublin region waste management plan whereby only the councils, or contractors appointed by them, could collect household waste.
He said the variation had been impaired by “bias and pre-judgment” because of statements made by assistant city manager Matt Twomey.
There had also been evidence, the judge said, of “preferential and secret alteration” of reports which Dublin City Council, as the lead authority in relation to the waste management plan, relied on to ground the variation.
The case arose out of a challenge by private waste management companies, Nurendale Ltd trading as Panda Waste Service, and Greenstar Ltd, who took separate cases against the councils claiming the variation to the plan was an abuse of its dominant position and contrary to competition law.
Panda had claimed this was an attempt to stop the collection of waste by the private sector and amounted to a fundamental change in the organisation of the market so to to “effectively remove competition”.
In his judgment yesterday, Mr Justice McKechnie said the variation would “substantially strengthen the position of the local authorities and substantially influence the structure of the market to the detriment of competition.”
He agreed with submissions by Panda that an earlier review undertaken by the city council was prejudged and the outcome pre-destined.
He ruled a similar case taken by Greenstar, “will also succeed”.
He said he will assess damages in the matter later.
There was “no objective justification” which would permit the variation of the waste plan under the 2002 Competition Act, the judge said.
The councils had abused their position of dominance because the variation was an agreement or “concerted practice” which was in breach of that Act, the judge said.
It would substantially influence the structure of the market to the detriment of competiton or would significantly strenghten the position of the local authorities in the market. The variation was also not saved by any “consideration of effeciencies” or objective justification as required by competition law, he said.
He agreed with submissions by Panda that an earlier review undertaken by the council was prejudged and the outcome pre-destined.
If a private company collects waste, then they own it and can determine where that waste goes, the judge said.
He also said the Poolbeg incinerator was “not free from uncertainty.”
The judge also said that the variation clearly went beyond what could have been contemplated by the Oireachtas in bringing in the Waste Management Act 1996 by seeking to re-monopolise the market for household waste collections.
In its claim, Panda said there had been a “war of attrition” by Mr Twomey who, it claimed, had indicated he wanted to take back control of the waste collection service.
It was also claimed the reason for wanting this control was so that there would be enough “raw material” for the planned waste incinerator at Poolbeg.
Mr Justice McKechnie noted yestserday that Poolbeg was “not free from uncertainty.”