Notice for the OJ
Action brought on 27 November 2001 by Der Grüne Punkt - Duales System Deutschland Aktiengesellschaft against the Commission of the European Communities
(Case T-289/01)
Language of the case: German
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 November 2001 by Der Grüne Punkt - Duales System Deutschland Aktiengesellschaft, Cologne (Germany), represented by W. Deselaers, B. Meyring and E. Wagner, with an address for service in Luxembourg.
The applicant claims that the Court should :
- declare Article 3(a) and (b) of the Decision of the defendant of 17 September 2001 (C(2001) 2672 final) relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement void;
-in the alternative, declare the decision in question void in its entirety;
-order the defendant to pay the costs.
Pleas in law and main arguments
Since 1991 the applicant has operated what is currently the only system covering the whole of Germany for the collection and recovery of used sales packaging bearing its trade mark "Der Grüne Punkt" ("Green Dot"). The applicant organises regular collections of packaging from nearly all private households in Germany. The applicant grants domestic and foreign manufacturers and/or distributors the right to mark sales packaging covered by the applicant's exemption system under the terms of a uniform agreement on use of the mark.
In September 1992 the applicant notified the Commission of its statutes and a sample of the agreements underlying the system. In January 1996, at the request of the defendant, the applicant gave the commitment on joint use set out in paragraph 71 of the contested decision and subject to various restrictions. In March 1997 the Commission announced its intention to take a favourable view of all the agreements notified pursuant to Article 19(3) of Regulation No 17.
1 By decision of 20 April 2001 the Commission required the applicant also to allow the use of the "Green Dot" mark for packaging which is not part of the applicant's system but part of that of a competitor and is intended for disposal by that competitor. The applicant brought an action against that decision before the Court of First Instance.
2 In June 2001 the defendant informed the applicant that it intended to attach conditions to the the decision on exemption. According to the applicant those conditions go far beyond the commitment given by the applicant. On 17 September 2001 the defendant finally issued the contested decision on exemption subject to two such conditions.
The applicant seeks the annulment of Article 3(a) and (b) of that decision and submits that the conditions imposed in it prejudice its legal position as it is forced to accept the use of its collection and sorting facilities by competitors.
The applicant argues that, by imposing the condition in Article 3(a) of the decision, the defendant has applied Article 81(3) EC incorrectly inter alia in that the condition is not objectively necessary as the use of the collection and sorting facilities is in no way indispensable for the activities of competitors. Moreover, the condition, which is disproportionate, entails an encroachment on the specific subject matter of the applicant's trade mark and distortion of competition to the detriment of the applicant.
The applicant argues, further, that, by imposing the condition in Article 3(a), the defendant has applied Article 86(2) EC incorrectly, since the applicant, which is entrusted with a service of general interest, can no longer operate its countrywide system under economically viable conditions and make the necessary adjustments between profitable and less profitable sectors.
Moreover, by imposing the condition in Article 3(b) the defendant has applied Article 86(2) EC incorrectly. Finally, the defendant, by seeking the commitment of 25 September 1998 (recital 72), has breached the fundamental right to freedom of access to justice.
____________1 - OJ C 100, p. 4.2 - Case T-151/01 Der Grüne Punkt - Duales System Deutschland AG v Commission OJ 2001 C 289, p. 26.