Notice for the OJ
Action brought on 22 December 2003 by ARGEV Verpackungsverwertungs-Gesellschaft mbH and Altstoff Recycling Austria Aktiengesellschaft against the Commission of the European Communities
(Case T-419/03)
(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 22 December 2003 by ARGEV Verpackungsverwertungs-Gesellschaft mbH and Altstoff Recycling Austria Aktiengesellschaft, Vienna (Austria), represented by Dr Hanno Wollmann, lawyer.
The applicant claims that the Court should
- annul Article 2 and Article 3 of the Commission Decision of 16 October 2003 in a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP D3/35.470 - ARA, COMP D3/35.743 - ARGEV, ARO);
- in the alternative, annul Article 3 of that decision;
- order the defendant to pay the costs.
Pleas in law and main arguments
In 1994 the applicants notified several agreements and requested negative clearance or, in the alternative, an exemption decision. By the contested decision, the Commission approved, subject to conditions, the bundle of contracts of ARA, the countrywide Austrian system for the collection and recycling of packaging waste.
The applicants object to Articles 2 and 3 of the decision and claim that the restriction of competition found by the Commission does not exist. The Commission bases Article 2 of the decision on the fact that ARGEV has given exclusive contracts in the relevant collecting region to those disposal undertakings with which it has concluded collection and sorting agreements ('services contracts'). That is incorrect. The services contracts do not contain either a commitment to exclusivity which binds ARGEV or on which it can rely. For that reason, the Commission ought to have given the services contracts the negative clearance primarily applied for instead of an exemption.
Moreover, the applicants claim that the services contract satisfies the requirements of the block exemption in Regulation No 2790/1999
1. Even if the services contracts of ARGEV contained an obligation of exclusivity (
quod non) the agreements would fulfil the requirements of the block exemption regulation. The imposition of conditions which exceed the provisions of the block exemption is impermissible.
Furthermore, the applicants submit that the conditions provided for cannot be fulfilled and are unreasonable. Article 3(b) of the decision requires ARGEV and/or its disposal partner to have continuing information concerning the total amount of packaging licensed through systems in the domestic sector. That information is not, however, available. In addition, market shares can only be determined retrospectively. The distribution key laid down by the Commission for the goods collected is therefore impracticable. Moreover, Article 3(b) would, on the basis of realistic assumptions, result in ARGEV failing to achieve the collection and recycling quota laid down by the authorities. In the worst case, that would lead to the withdrawal of approval. The condition is therefore unreasonable, in particular because there were less severe means of achieving the objective sought by the Commission. The proposals made by ARGEV in that regard were left out of account by the Commission in the decision, without any reasons being given.
Finally, the applicants submit that there is a contradiction between the operative part and the statement of reasons of the decision in material respects. The statement of reasons contains material restrictions of the conditions that are not reproduced in the operative part of the decision.
____________1 - - Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21).