# C_2007269EN.01002902.xml

| 10.11.2007 | EN | Official Journal of the European Union | C 269/29 |
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10.11.2007

EN

Official Journal of the European Union

C 269/29

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Appeal brought on 13 August 2007 by Der Grüne Punk — Duales System Deutschland GmbH against the judgment of the Court of First Instance (First Chamber) delivered on 24 May 2007 in Case T-151/01 Der Grüne Punkt — Duales System Deutschland GmbH v Commission of the European Communities, supported by Vfw AG, Landbell AG für Rückhol-Systeme and Belland Vision GmbH

(Case C-385/07 P)

(2007/C 269/51)

Language of the case: German

Parties

Appellant: Der Grüne Punk — Duales System Deutschland GmbH (represented by: W. Deselaers, E. Wagner, B. Meyring, Rechtsanwälte)

Appellant:

Other party to the proceedings: Commission of the European Communities, Vfw AG, Landbell AG für Rückhol-Systeme and Belland Vision GmbH

Other party to the proceedings:

Form of order sought

| — | Annulment of the judgment of the Court of First Instance of the European Communities of 24 May 2007 in Case T-151/01; |
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Annulment of the judgment of the Court of First Instance of the European Communities of 24 May 2007 in Case T-151/01;

| — | annulment of Commission Decision 2001/463/EC of 20 April 2001 relating to a proceeding pursuant to Article 82 EC (Case COMP D3/34493 — DSD) (1); |
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annulment of Commission Decision 2001/463/EC of 20 April 2001 relating to a proceeding pursuant to Article 82 EC (Case COMP D3/34493 — DSD) (1);

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| — | in the alternative, refer the case to the Court of First Instance for reassessment in accordance with the Court's judgment; |
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in the alternative, refer the case to the Court of First Instance for reassessment in accordance with the Court's judgment;

| — | in any case, order the Commission to pay the costs both before the Court of First Instance and before the Court of Justice. |
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in any case, order the Commission to pay the costs both before the Court of First Instance and before the Court of Justice.

Grounds of appeal and main arguments

The appellant bases its appeal against the above mentioned judgment of the Court of First Instance on eight grounds of appeal.

By its first ground of appeal the appellant claims that the Court of First Instance infringed its duty to give reasons and thus also Article 82 EC with its contradictory finding of the conduct leading to an abuse. In one instance the Court found that there had been an abuse on the basis that the appellant requires undertakings, which do not use its system or use it only in respect of certain packaging carrying its logo, to pay the full licence fee. In another instance the Court states that it only ‘could be the case’ under the provisions in dispute of the Trade Mark Agreement that the appellant charges the price of the collection and recovery service for sales packaging which is not part of its system.

could be the case

The second, fifth and sixth grounds of appeal relate to the assessment of the scope of the licence offered by the appellant, which, it is argued, is inadequate, manifestly misleading and wrong in law as being at variance with the documents and evidence submitted. Had the Court carried out its assessment of the facts correctly it would have had to recognise that the appellant does not grant licences in isolation in such a way that the contested decision would have to be understood as a finding that the refusal to grant such a licence is abusive and that the order to cease charging any licence fee for partial quantities of sales packaging in Article 3 of the contested decision is tantamount to an order to charge a compulsory licence fee. However, the Court wrongly failed to respect the requirements resulting from the case-law to give reasons and failed to have regard to the fact that a compulsory licence is not possible from the point of view of trade mark and packaging law. The appellant claims in that regard that the duty to give reasons, the fundamental principle of proportionality and Article 82 EC and Article 3 of Council Regulation No 17 were infringed.

By its third and fourth pleas in law the appellant claims that the Court infringed its duty to give reasons and thus also Article 82 EC by its finding that the mark ‘Der Grüne Punkt’ could not benefit from the ‘exclusivity claimed’, which, it is argued, is inadequate, misleading and wrong as regards German packaging and trade mark law. With that finding it even infringed the fundamental principle of Community trade mark law under which a registered mark grants its proprietor an exclusive right, in particular, in relation to the use of the mark for goods and services which are identical or similar to those for which the mark was registered.

exclusivity claimed

By its seventh and eighth pleas in law the appellant alleges two procedural errors. First, the Court introduced new findings or made findings of its own motion even though the subject-matter of those findings was not part of the contested decisions or introduced by the parties in the proceedings before the Court. Second, the Court committed a procedural error to the detriment of the appellant in that it infringed the basic right of the Union that a case is to be dealt with within a reasonable period of time.

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(1)  OJ 2001 L 166, p. 1.

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