Case T-289/01

Der Grüne Punkt – Duales System Deutschland GmbH

v

Commission of the European Communities

(Competition – Agreements, decisions and concerted practices – Collection and recovery system for packaging marketed in Germany bearing the Der Grüne Punkt logo – Decision granting exemption – Obligations imposed by the Commission to ensure competition – Exclusivity granted by the system operator to the collection undertakings used – Restriction of competition – Need to guarantee the access of competitors to the collection facilities used by the system operator – Commitments given by the system operator)

Judgment of the Court of First Instance (First Chamber), 24 May 2007

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Not allowed – Exemption – Commitment given during the administrative proceedings

(Art. 81 EC)

2. Competition – Agreements, decisions and concerted practices – Not allowed – Exemption – Conditions

3. Competition – Agreements, decisions and concerted practices – Not allowed – Exemption – Conditions

(Art. 81(1) and (3) EC; Council Regulation No 17, Art. 8(1))

4. Competition – Community rules – Application by national courts

(Art. 81(1) EC)

5. Competition – Undertakings entrusted with the operation of services of general economic interest

(Art. 86(2) EC)

1. A commitment given by an undertaking during the administrative proceedings to address the concerns voiced in such proceedings by the Commission has the effect of clarifying the content of the agreements notified for the purposes of obtaining negative clearance or exemption under Article 81 EC, by showing the Commission the way in which that undertaking intends to act in the future. The Commission is thus entitled to take account of that commitment in adopting its decision, and it is not the task of the Court of First Instance to examine the legality of that decision in the light of a right which the undertaking waived during the administrative proceedings.

(see paras 87-89)

2. Where facilities belonging to the contractual partners of an undertaking which handles the greater part of demand form a bottleneck for that undertaking’s competitors, the Commission may oblige that undertaking, as a condition for granting negative clearance or an exemption under Article 81 EC, to allow shared use of those facilities between itself and its competitors, since otherwise the latter would be deprived of any real opportunity of entering, and remaining on, the market in question.

(see paras 107, 112-113)

3. Article 8(1) of Regulation No 17 provides that conditions and obligations may be attached to decisions granting exemption without stipulating under what conditions the Commission must choose a particular one of those possibilities. In addition, since Article 81(3) constitutes, for the benefit of undertakings, an exception to the general prohibition contained in Article 81(1) EC, the Commission enjoys a large measure of discretion in relation to the detailed rules to which it may subject the exemption, while at the same time having to act within the limits imposed upon its competence by Article 81 EC.

The fact that, in certain cases, the Commission has preferred to impose conditions rather than obligations is not sufficient, in itself, to call into question the possibility provided for in Regulation No 17 of coupling a decision granting exemption with obligations rather than conditions.

(see paras 153-154)

4. Where national courts rule on agreements or practices which are already the subject of a decision by the Commission, acting within the competence conferred upon it to enforce the Community competition rules, they cannot take decisions running counter to that of the Commission, even if the latter’s decision conflicts with a decision given by a national court of first instance.

(see para. 197)

5. Even if an undertaking managing a collection and recovery system for sales packaging is entrusted with a service of general economic interest within the meaning of Article 86(2) EC, the fact that the Commission has imposed an obligation on it not to impede collection undertakings from concluding with that undertaking’s competitors contracts authorising them to use their bins and other collection and sorting facilities for packaging and to apply those agreements does not in any way prove that the attainment, on economically acceptable conditions, of the take-back and recovery service entrusted to that system is threatened.

(see paras 207-208)

JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

24 May 2007 ( )

(Competition – Agreements, decisions and concerted practices – Collection and recovery system for packaging marketed in Germany bearing the Der Grüne Punkt logo – Decision granting exemption – Obligations imposed by the Commission to ensure competition – Exclusivity granted by the system operator to the collection undertakings used – Restriction of competition – Need to guarantee the access of competitors to the collection facilities used by the system operator – Commitments given by the system operator)

In Case T‑289/01,

Der Grüne Punkt – Duales System Deutschland GmbH, formerly Der Grüne Punkt – Duales System Deutschland AG, established in Cologne (Germany), represented by W. Deselaers, B. Meyring and E. Wagner, lawyers,

applicant,

v

Commission of the European Communities, represented initially by S. Rating, and subsequently by P. Oliver, H. Gading and M. Schneider, and finally by W. Mölls and R. Sauer, acting as Agents,

defendant,

supported by

Landbell AG für Rückhol–Systeme, established in Mayence (Germany), represented by A. Rinne and A. Walz, lawyers,

intervener,

APPLICATION for annulment of Article 3 of Commission Decision 2001/837/EC of 17 September 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Cases COMP/34493 – DSD, COMP/37366 – Hofman + DSD, COMP/37299 – Edelhoff + DSD, COMP/37291 – Rechmann + DSD, COMP/37288 – ARGE and five other undertakings + DSD, COMP/37287 – AWG and five other undertakings + DSD, COMP/37526 – Feldhaus + DSD, COMP/37254 – Nehlsen + DSD, COMP/37252 – Schönmakers + DSD, COMP/37250 – Altvater + DSD, COMP/37246 – DASS + DSD, COMP/37245 – Scheele + DSD, COMP/37244 – SAK + DSD, COMP/37243 – Fischer + DSD, COMP/37242 – Trienekens + DSD, COMP/37267 – Interseroh + DSD) (OJ 2001 L 319, p. 1), or, in the alternative, annulment of that decision in its entirety and of the applicant’s commitment reproduced in recital 72 of that decision.

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of R. García-Valdecasas, President, J.D. Cooke and I. Labucka, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 11 and 12 July 2006,

gives the following

Judgment

Law

A – Ordinance on the avoidance of packaging waste

1 On 12 June 1991 the German Government adopted the Verordnung über die Vermeidung von Verpackungsabfällen (Ordinance on the avoidance of packaging waste (BGBl. 1991 I, p. 1234)), the amended version of which – applicable in the present case – entered into force on 28 August 1998 (‘the Ordinance’ or ‘the Packaging Ordinance’). That ordinance is intended to prevent and reduce the impact of packaging waste on the environment. For that purpose it requires manufacturers and distributors to take back and recover used sales packaging outside the public waste disposal system.

2 Under Paragraph 3(1) of the Ordinance, sales packaging (‘packaging’) is packaging which is provided as a unit at the point of sale and passes to the final consumer. It also includes packaging used by trades, restaurants and other service providers which enables or supports the handing over of goods to final consumers (service packaging), and non-returnable tableware and cutlery.

3 Paragraph 3(7) of the Ordinance defines the manufacturer as someone who manufactures packaging, packaging materials or products from which packaging is directly made, or who imports packaging into German territory. Paragraph 3(8) of the Ordinance provides that distributor is someone who puts into circulation, regardless of the marketing stage, packaging, packaging materials or products from which packaging is directly made, or packaged goods. The mail-order trade may also be a distributor within the meaning of the Ordinance. Lastly, a final consumer is principally defined in Paragraph 3(10) of the Ordinance as someone who does not resell the goods in the form in which they are delivered to him.

4 The obligations to take back and recover which are imposed on manufacturers and distributors under the Ordinance can be met in two ways.

5 First, pursuant to Paragraph 6(1) and (2) of the Ordinance, manufacturers and distributors are obliged to take back from final consumers used sales packaging, free of charge at, or in the immediate vicinity of the actual point of sale and to recover it (‘the self-management solution’). The distributor’s take-back obligation is limited to packaging of the type, shape and size, and of the goods which are part of his range. In the case of distributors with a sales area of less than 200 square metres, the take-back obligation applies only to packaging for the brands sold by the distributor (fourth and fifth sentences of Paragraph 6(1) of the Ordinance). Under the third sentence of Paragraph 6(1) of the Ordinance, in a self-management solution, the distributor must draw the attention of the final consumer ‘by means of clearly visible and legible signs’ to the fact that the packaging may be returned.

6 Second, in accordance with the first sentence of Paragraph 6(3) of the Ordinance, manufacturers and distributors may participate in a system which guarantees the regular collection, throughout the distributor’s sales territory, of used sales packaging from the final consumer or in the vicinity of the final consumer in order for them to be recovered (‘the exemption system’). Manufacturers and distributors participating in an exemption system are exonerated from their take-back and recovery obligations in respect of all packaging covered by that system. Pursuant to the second sentence of point 4(2) of Annex I to Paragraph 6 of the Ordinance, manufacturers and distributors have to make it known that they are participating in an exemption system ‘by marking packaging or by other suitable means’. They can thus make such participation known on the packaging or use other measures, such as informing customers at the point of sale or by a package leaflet, for example.

7 Pursuant to the 11th sentence of Paragraph 6(3) of the Ordinance, exemption systems need to be approved by the competent authorities in the Länder concerned. To be approved, those systems must, inter alia, cover the territory of at least one Land, ensure regular collections reaching the final consumer and have signed agreements with the local bodies responsible for waste management. Any undertaking which satisfies those conditions in a Land is entitled to organise an authorised exemption system in that Land.

8 Since 1 January 2000 both self-management solutions and exemption systems are subject to the same recovery rates. Those rates, which are laid down in Annex I to the Ordinance, vary depending on the packaging material. Compliance with the take‑back and recovery obligations is ensured, in the case of self‑management solutions, by certificates provided by independent experts and, in the case of exemption systems, by the provision of verifiable data on the quantities of packaging collected and recovered.

9 In addition, the ninth sentence of Paragraph 6(1) of the Ordinance states that, if a distributor does not comply with his take‑back and recovery obligations by means of a self‑management solution, he must do so by means of an exemption system.

10 In that regard, in their observations of 24 May 2000, sent to the Commission in the context of the administrative proceedings (‘the observations of the German authorities’), the German authorities stated that the Packaging Ordinance allowed distributors to combine the taking back of packaging in the vicinity of his business, in the context of a self-management solution, and the collection of packaging in the vicinity of the final consumer, in the context of an exemption system, by participating in the exemption system for only part of the packaging which it had put on the market.

11 In the observations of the German authorities it was also stated that, if the distributor chose to participate in an exemption system for all the packaging which he marketed, he was no longer subject to the obligations laid down in Paragraph 6(1) and (2), which meant that a subsequent individual waste collection solution was not possible. However, if the distributor chose to participate from the outset in a self‑management solution, subsequent participation in an exemption system was possible if the recovery rate was not achieved in the context of the individual waste disposal.

B – The exemption system of Der Grüne Punkt – Duales System Deutschland GmbH, the Trade Mark Agreement and the Service Agreement

12 Since 1991, Der Grüne Punkt – Duales System Deutschland GmbH (‘the applicant’ or ‘DSD’) is the only undertaking which operates a Germany-wide exemption system (‘the DSD system’). For that reason, in 1993, DSD was approved by the competent authorities in all of the Länder.

13 In order to be able to take part in the DSD system, manufacturers and distributors have to sign a contract with DSD granting them the right to use the Der Grüne Punkt logo, which is the collective trade mark Der Grüne Punkt of which DSD is the proprietor. In return, the manufacturers and distributors concerned pay a royalty to DSD. The Trade Mark Agreement is the subject‑matter of Commission Decision 2001/463/EC of 20 April 2001 relating to a proceeding under Article 82 EC (Case COMP D3/34493 – DSD (OJ 2001 L 166, p. 1)). That decision was the subject of an action for annulment brought by applicant in Case T‑151/01 DSD v Commission.

14 Under the DSD system, the applicant neither collects nor takes back used packaging itself, but sub‑contracts that service to collection undertakings. The relations between DSD and those undertakings are governed by a standard agreement, amended on a number of occasions, which seeks to create and operate a system to collect and sort packaging (‘the Service Agreement’). Once sorted, that material is transported to a recycling plant to be recovered.

Facts at the origin of the dispute

15 On 2 September 1992 DSD notified the Commission of its Statutes and also of a number of agreements, including the Service Agreement – the only agreement which is relevant in the present case – with a view to obtaining negative clearance or, failing that, a decision granting exemption.

16 On 27 March 1997 the Commission published the notice in the Official Journal of the European Communities (OJ 1997 C 100, p. 4), pursuant to Article 19(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ English Special Edition 1959‑62, p. 87) in which it stated its intention to take a favourable view of the notified agreements.

17 In that notice, the Commission stated, inter alia, that DSD had given a series of commitments to it, including a commitment not to oblige collection undertakings to work exclusively for DSD and to refrain from obliging those undertakings to use containers or other collection facilities exclusively for the performance of the Service Agreement. DSD had however stated that that second commitment did not apply when the use of the containers and collection facilities by third parties was incompatible with ‘the permission given by the public authorities’, or when the Packaging Ordinance or other legislation determined otherwise, or when for other reasons it would have been unreasonable to permit them to be used, related, for example, to the use of dangerous substances. DSD also stated that it was able to take account of the use of containers and other collection facilities by third parties in the calculation of the remuneration of collection undertakings (recitals 66 and 67 of the notice in the Official Journal, and recitals 71 and 134 of the contested decision).

18 Following the publication of that notice in the Official Journal, the Commission received observations from interested third parties concerning different aspects of the application of the Service Agreement. Those third parties submitted that, in practice, and contrary to the commitments referred to above, DSD did not allow them unimpeded access to the collection facilities used by DSD’s contractual partners (recitals 76 and 77 of the contested decision). In the contested decision, the Commission thus states that DSD had requested that its contractual partners be permitted to use those facilities only with its authorisation. This formed one of the grounds for complaint lodged under Article 82 EC by the Vereinigung für Wertstoffrecycling (‘VfW’), and was also the subject‑matter of an action brought before the Landgericht Köln (Cologne Regional Court, Germany) (recitals 57 and 136 of the contested decision).

19 In that case DSD brought an action, on the basis of the German law on unfair competition, against a self‑management solution, namely VfW, which was trying to use, free of charge, the collection facilities used by the DSD system in certain German hospitals. That case gave rise to the judgment of the Landgericht Köln of 18 March 1997 in which DSD was successful in so far as the German court found unlawful the free, shared use of the collection facilities belonging to the DSD system. In that judgment, the Landgericht Köln also stated that, in the light of the circumstances of the case, adequate compensation for such shared use could be determined only if VfW paid directly to DSD a sort of royalty in return for such use of those collection facilities.

20 In that context, the Commission pointed out to DSD by letter of 21 August 1997 that conduct consisting of preventing third parties from using the collection facilities of its contractual partners could fall within the scope of Article 82 EC and it stressed the importance that such conduct could have in respect of the exemption procedure, in so far as, in accordance with the fourth condition laid down in Article 81(3) EC, an agreement notified for exemption purposes cannot afford the possibility of eliminating competition in respect of a substantial part of the products in question.

21 After the Commission had put forward its view, DSD gave the following commitment in order to address the preliminary concerns expressed by that institution in its letter of 21 August 1997 (recitals 58, 72 and 137 of the contested decision):

‘DSD is prepared to refrain from seeking to restrict use in the manner referred to in the judgment of the [Landgericht Köln] of 18 March 1997 in [the] particular case of VfW and in comparable cases. DSD may however pursue claims for information and settlement against collectors in a contractual relationship with DSD.’

The contested decision

22 On 17 September 2001 the Commission adopted Decision 2001/837/EC relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Cases COMP/34493 – DSD, COMP/37366 – Hofman + DSD, COMP/37299 – Edelhoff + DSD, COMP/37291 – Rechmann + DSD, COMP/37288 – ARGE and five other undertakings + DSD, COMP/37287 – AWG and five other undertakings + DSD, COMP/37526 – Feldhaus + DSD, COMP/37254 – Nehlsen + DSD, COMP/37252 – Schönmakers + DSD, COMP/37250 – Altvater + DSD, COMP/37246 – DASS + DSD, COMP/37245 – Scheele + DSD, COMP/37244 – SAK + DSD, COMP/37243 – Fischer + DSD, COMP/37242 – Trienekens + DSD, COMP/37267 – Interseroh + DSD) (OJ 2001 L 319, p. 1; ‘the contested decision’ or ‘the decision’).

23 The assessment made by the Commission in the contested decision commences with the application made by DSD to obtain negative clearance or, failing that, a decision granting exemption in respect of the Service Agreement.

A – The contractual relations between DSD and the collection undertakings

24 DSD does not itself collect packaging but employs collection undertakings with which it concludes a Service Agreement. Pursuant to Paragraph 1 of that standard agreement, DSD entrusts each collection undertaking with the exclusive task of collecting and sorting packaging in a certain district in accordance with an exemption system and this for a duration of around 15 years (‘the exclusivity clause in favour of the collection undertaking’ or ‘the exclusivity clause’).

25 The packaging is either collected in containers placed close to the households of the consumers concerned or removed or emptied from plastic bags or bins which are provided to consumers by the collection undertaking. That undertaking owns the containers and the packaging deposited therein or which it has collected. The sorting of the collected material is the responsibility of the collection undertakings and is generally done in a specialised sorting centre. Each collection undertaking is remunerated by DSD according to the weight of each type of material, the cost of treatment of the sorted waste and the success rate of the collection (recitals 32, 45 and 51 of the contested decision).

26 The contested decision incidentally observes that collection undertakings usually also collect printed matter (newspapers and magazines) at the same time as packaging made of paper and card. However, since that printed matter, which accounts for about 75% of that type of material, does not form part of the DSD system, DSD does not pay for its collection (recital 32 of the contested decision).

B – Assessment relating to Article 81(1) EC

27 In the context of that assessment, the contested decision concerns two aspects of the Service Agreement.

1. The exclusivity clause in favour of the collection undertaking

28 First, the contested decision states that the effect of the exclusivity clause in favour of the collection undertaking, which is inserted into all Service Agreements concluded between DSD and its contractual partners, is to prevent other collection undertakings from offering their services to DSD (recitals 122 to 124 of the contested decision).

29 In order to analyse that clause in the light of Article 81(1) EC the Commission examines, first of all, the situation of the demand on the German market for collecting and sorting packaging from consumers (‘the market for collection from consumers’). In that regard, the contested decision states that DSD deals with approximately 70% of packaging capable of being collected in Germany and at least 80% of the demand in the market for collection from consumers. DSD’s influence is therefore decisive both at national level, where it constitutes the only available exemption system, and in the 500 areas covered by Service Agreements (recitals 126 and 127 of the contested decision).

30 On the supply side, the contested decision points out, next, that numerous actors offer collection services. The contested decision also states that ‘primarily for reasons of spatial organisation and collection logistics, it is unlikely at present that an additional collection system for private final consumers will be set up alongside that already established by DSD’. The decision states, on the contrary, that ‘given the infrastructure bottleneck at the point of collection from households, it is surely more realistic to suppose that a potentially competing exemption system or self‑management arrangement would cooperate with those collectors who already provided collection services for DSD under a Service Agreement’. Thus, for the Commission, it is only at certain collection points deemed equivalent to private households, such as hospitals or canteens, subject to certain conditions relating to collection logistics and types of packaging, that collection undertakings other than the contractual partners of DSD might be able to conceive installing additional collection containers to those used by the DSD system. It is considered in the decision, however, that such opportunities are of relatively limited economic importance and that it is unlikely, therefore, that any appreciable new opportunities for excluded undertakings will arise during the lifetime of the Agreement in the contracting areas covered by the DSD Service Agreement (recitals 127 and 128 of the contested decision).

31 In addition, the decision states that, in an assessment of the effect of these exclusivity obligations on competition, a decisive factor is their duration, given that the longer that duration, the more that clause has the long-lasting effect of excluding other collection undertakings which are not contractual partners of DSD from the possibility of offering their services to meet the demand of the most important German exemption system (recitals 129 and 130 of the contested decision).

32 Following that analysis, the Commission notes that the access of collection undertakings to the market for collection from consumers is greatly obstructed; this goes a considerable way towards partitioning off a substantial part of the common market. Consequently, the exclusivity clause in favour of the collection undertaking constitutes a restriction of competition for the purposes of Article 81(1) EC (recital 132 of the contested decision). When questioned on that point at the hearing, DSD stated that it did not dispute that analysis.

2. Access to the facilities of collection undertakings

33 Second, the contested decision examines the extent to which competitors with DSD may have access to the facilities of collection undertakings. In that regard, the Commission points out that, in its view, there would be a restriction of competition for the purposes of Article 81(1) EC ‘if the Service Agreement was so designed that it excluded competitors with DSD from access to the collection infrastructure’ (recital 133 of the contested decision).

34 In support of that claim, the decision states, first, that ‘the infrastructure for collection in the vicinity of households forms a bottleneck, so that [the facilities of the collection undertakings are] especially important in terms of competition law’. Thus, the decision states that that type of collection is carried out, in general, directly at all households in the local authority’s area (collection systems), with the exception of a few cases where waste is brought voluntarily by the public (waste collection centres). The decision also states that, for logistical reasons collection points at households, if they are to be served at optimum cost, have usually to be served by only a limited number of collectors. In addition, the decision points out that only one container can be placed at each collection point for each type of material (such as glass, paper or lightweight packaging), for reasons of space and the established habits of final consumers in respect of collection. Such facts constitute the main reason why there is usually only one household refuse and reusable materials collection from households, which is carried out by just one collector (recital 133 of the contested decision, read in conjunction with recitals 92 and 93 thereof). Second, the decision draws attention to the fact that objections were put forward on competition grounds following the publication of the notice in the Official Journal. The Commission refers here to the fact that, on that occasion, several interested third parties stated that, contrary to a first series of commitments given by DSD (see paragraph 17), that undertaking did not allow third parties to access the collection facilities of its contractual partners freely by requiring them to agree to share the use of those facilities (recital 133 of the contested decision, read in conjunction with recitals 76 and 77 of that decision).

35 In that context, the contested decision draws attention, first, to the fact that DSD had claimed that joint use of the collection facilities of DSD’s contractual partners by third parties should be possible only if DSD had authorised it. The decision states, however, that, following the Commission’s letter of 21 August 1997, which pointed out to DSD that such conduct could fall within the scope of Article 82 EC, DSD had decided no longer to insist that third parties obtain its authorisation in order to be able to use the collection facilities of its contractual partners (see paragraphs 20 and 21). That decision also states that ‘there would also be a difficulty if DSD were to demand payment for such use directly from third parties, or to claim that it ought to have a say in the negotiation by collectors and third parties of an appropriate payment for the joint use of collection containers’. Nonetheless, the decision takes care to point out that, in the case of the shared use of the facilities of its contractual partners, DSD remains free to negotiate a reduction of the royalty paid to those undertakings and it may also ensure that it is not charged for any service provided for a third party (recitals 136 to 138 of the contested decision).

36 In the light of those commitments and that information, the Commission considers that the Service Agreement does not confer any exclusivity on DSD, and that collection undertakings are free to offer their services to competitors with DSD. The decision also points out that ‘it does not, therefore, follow from the Service Agreement that competitors with DSD are denied access to the collection infrastructure, so that there is no restriction of competition here within the meaning of Article 81(1) [EC]’ (recitals 134 and 139 of the contested decision).

C – Assessment relating to Article 81(3) EC

37 In order to declare the provisions of Article 81(1) EC inapplicable to the Service Agreement, the contested decision examines the exclusivity clause in favour of the collection undertaking in the light of the conditions laid down in Article 81(3) EC.

38 In that context, the contested decision considers that that clause contributes to improving the production of goods and to promoting technical or economic progress because it enables environmental objectives to be met (recitals 142 to 146 of the contested decision), while reserving a fair share of the resulting benefit to consumers (recitals 147 to 149 of the contested decision).

39 Similarly, as regards whether or not the exclusivity clause laid down in the Service Agreement is indispensable, the contested decision points out that the putting in place of the DSD system requires considerable investments from the collection undertakings, which need to be able to obtain certain guarantees from DSD as regards the duration of the agreement in order to be able to recoup and obtain a profit from those investments. After examination, the Commission considers it necessary, however, to reduce the initial duration laid down for the exclusivity clause by setting it a termination date of 31 December 2003 (recitals 150 to 157 of the contested decision).

40 Finally, the contested decision examines the question whether the exclusivity clause is not likely to eliminate competition on the market for collection from consumers. In that regard, the Commission starts by pointing out that collection undertakings excluded from the DSD system remain free to offer their services to firms wishing to manage their own waste. Such arrangements are possible at least in respect of certain combinations of sales packaging and collection points on the margins of the market for collection from consumers (recital 159 of the contested decision).

41 In addition, the Commission notes that the market for collection from consumers is characterised by the fact that it is economically more advantageous to entrust the whole of a designated area to just one collection undertaking and that it is, in many cases, rather less profitable to have several collection facilities for household collection for reasons of spatial economics, collection logistics and traditions of waste collection established among consumers. For the Commission, the containers used for collecting, which are situated close to households, thus form a bottleneck. It thus considers it realistic to expect that exemption schemes competing with the DSD system and some self-management solutions will often work together with the collection undertakings which work for DSD. That analysis enables the Commission to draw attention to the need for the contracting parties of DSD to share the use of the collection facilities, given that ‘free and unimpeded access to the collection infrastructure set up by collectors contracted to DSD under a Service Agreement is therefore a vital condition of more intense demand-side competition for collection and sorting services for [household packaging] and more intense competition on the upstream market in the organisation of the take-back and recovery of [packaging from consumers]’ (recital 162 of the contested decision). The decision observes, in that regard, that the Service Agreement does not tie the collection undertakings exclusively to DSD and that DSD has given several commitments, including one to refrain from requiring collection undertakings to use collection facilities solely for the purposes of the Service Agreement and not to seek to restrain third parties from using those collection facilities in the case of shared use (recitals 158 to 163 of the contested decision).

D – Obligations imposed by the Commission to be attached to the decision granting exemption

42 In order to ensure that the anticipated effects on competition do in fact take place and that the tests for exemption in Article 81(3) EC are accordingly satisfied, the Commission considers it necessary to attach obligations to its decision to exempt the Service Agreement under Article 8 of Regulation No 17 (recital 164 of the contested decision).

43 The first obligation is imposed on DSD in Article 3(a) of the contested decision, according to which ‘DSD shall not impede collectors wishing to conclude and apply agreements with organisations competing with DSD for the joint use of containers or other facilities for the collection and sorting of used sales packaging’.

44 The second obligation is defined in Article 3(b) of the decision and states that ‘where collectors conclude agreements with competitors with DSD providing for the joint use of containers or other facilities for the collection and sorting of used sales packaging, DSD may not require that they inform DSD of volumes of packaging not collected for the DSD system’.

45 In order to explain in what respect such obligations have to be imposed notwithstanding DSD’s commitment to authorise its competitors to use the collection facilities, the contested decision refers to the vital importance of unimpeded access to those facilities for the existence of competition and the qualifications made by DSD in relation to the implementation of one of the commitments set out in recital 71 (recital 164 of the contested decision).

E – Conclusions

46 On the basis of the commitments given by DSD and the obligations attached to the decision, the contested decision concludes by stating that free and unimpeded access to the collection infrastructures is possible in practice. According to the decision, there is realistic scope for entry to the market for collection from consumers both for exemption systems competing with the DSD system and for individual collection systems. That scope will also allow the conditions to be established which are necessary for the intensification of competition on the upstream market in the organisation of the take-back and recovery of packaging from consumers (recitals 176 to 178 of the contested decision).

47 Consequently, the contested decision states that the exclusivity clause in favour of the collection undertaking, contained in the Service Agreement, satisfies the test for the application of Article 81(3) EC (recital 179 of the contested decision). In Article 2 of the contested decision, the Commission thus states that ‘acting under Article 81(3) [EC] ..., the Commission declares Article 81(1) [EC] … inapplicable to individual Service Agreements containing an exclusivity clause running no further than the end of 2003’ and that ‘this exemption shall run from 1 January 1996 to 31 December 2003’.

48 The two obligations mentioned above (see paragraphs 43 and 44) are attached to that exemption, as laid down in Article 3 of the decision, in order, first, to ensure access to the collection infrastructures of DSD’s partners in the Service Agreement, and to prevent the elimination of competition on the relevant markets and, second, to enable DSD’s competitors to make unrestricted use of the quantities of packaging collected for them in the context of that shared use of the collection facilities. These obligations are indispensable in order to prevent the elimination of competition on the relevant markets, and constitute a clarification of the commitments given by DSD which helps to increase their legal certainty (recital 182 of the contested decision).

49 Finally, the contested decision states that, if it proves from a decision of a German court of last resort that, contrary to the Commission’s view, the use by third parties of the collection facilities of Service Contract collection undertakings is not compatible with the Packaging Ordinance, there would then have been a major change in the facts basic to the making of the decision, and the Commission would reconsider the requirements for the applicability of Article 81(3) EC to the Service Agreement, and would if necessary revoke the declaration of exemption (recital 183 of the contested decision).

F – Operative part

50 Article 1 of the operative part sets out the Commission’s position on DSD’s constitution and the Guarantee Agreements which had been notified by DSD at the same time as the Service Agreement:

‘On the basis of the facts in its possession and of the commitments given by DSD, the Commission finds that there are no grounds under Article 81(1) [EC] and Article 53(1) of the EEA Agreement for action on its part in respect of the Constitution of DSD or the Guarantee Agreements.’

51 Article 2 of the contested decision exempts the Service Agreement:

‘Acting under Article 81(3) [EC] and Article 53(3) of the EEA Agreement, the Commission declares Article 81(1) [EC] and Article 53(1) of the EEA Agreement inapplicable to individual Service Agreements containing an exclusivity clause running no further than the end of 2003.

This exemption shall run from 1 January 1996 to 31 December 2003.’

52 In Article 3 of the decision, the Commission attaches two obligations to that exemption:

‘The following obligations are attached to the declaration of exemption in Article 2:

(a) DSD shall not impede collectors wishing to conclude and apply agreements with organisations competing with DSD for the joint use of containers or other facilities for the collection and sorting of used sales packaging.

(b) Where collectors conclude agreements with competitors with DSD providing for the joint use of containers or other facilities for the collection and sorting of used sales packaging, DSD may not require that they inform DSD of volumes of packaging not collected for the DSD system.’

Procedure and forms of order sought

53 By application lodged at the Registry of the Court of First Instance on 27 November 2001, the applicant brought an action seeking annulment of the contested decision, under the fourth paragraph of Article 230 EC.

54 By application registered at the Registry of the Court of First Instance on 26 February 2002, Landbell AG für Rückhol-Systeme (‘Landbell’), an exemption system in competition with DSD, sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. That application for leave to intervene was notified to the parties, which submitted their observations within the prescribed period.

55 By order of 17 June 2002, the Court of First Instance (Fifth Chamber) granted Landbell leave to intervene and it submitted its observations on 9 October 2002.

56 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (First Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, sent the parties a number of questions to be answered orally at the hearing.

57 The parties presented oral argument and answered the questions put by the Court at the hearing on 11 and 12 July 2006.

58 The applicant claims that the Court should:

– annul Article 3(a) and (b) of the contested decision;

– in the alternative, annul the contested decision in its entirety;

– annul DSD’s commitment reproduced in recital 72 of the contested decision;

– order the Commission to pay the costs.

59 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

60 Landbell claims that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

61 The applicant raises four pleas in law in support of its action. The first plea alleges that the obligation laid down in Article 3(a) of the contested decision infringes Article 81(3) EC and the principle of proportionality. The second plea alleges that that obligation infringes Article 86(2) EC. The third plea alleges that the obligation laid down in Article 3(b) of the contested decision infringes Article 81(3) and Article 86(2) EC. The fourth plea, linked to the application for annulment of the applicant’s commitment referred to in recital 72 of the contested decision, alleges infringement of the fundamental right of access to justice.

A – The first plea, alleging that the obligation laid down in Article 3(a) of the contested decision infringes Article 81(3) EC and the principle of proportionality

62 The applicant claims that the obligation laid down in Article 3(a) of the contested decision (‘the first obligation’), according to which ‘DSD shall not impede collectors wishing to conclude and apply agreements with organisations competing with DSD for the joint use of containers or other facilities for the collection and sorting of used sales packaging’, infringes Article 81(3) EC and the principle of proportionality. That plea is essentially divided into three parts.

63 First, the applicant claims that the first obligation is not objectively necessary in the light of Article 81(3) EC since the shared use of the collection and sorting facilities (‘the collection facilities’) is not indispensable for the activity of DSD’s competitors. At the very least, the applicant submits that the contested decision does not provide sufficient reasoning on that point.

64 Second, the applicant claims, in response to the arguments raised in the statement in defence, that the alleged threat of infringement of Article 81(1) EC or Article 82 EC claimed by the Commission is speculative and cannot justify the first obligation, which – in any case – can only seek to prevent the elimination of competition on the market in which a restriction of competition has been found beforehand.

65 Third, the applicant submits that the first obligation is disproportionate and alleges (i) that the shared use of the collection facilities imposed by that obligation is contrary to the Packaging Ordinance; (ii) that the first obligation leads to a distortion of competition to its detriment; (iii) that the obligation at issue adversely affects the specific subject-matter of the mark Der Grüne Punkt; and (iv) that it infringes its fundamental right of access to justice.

66 Before expounding those arguments the applicant first states why it is necessary to obtain its agreement in the case of shared use of the collection facilities.

67 Those reasons need to be examined before assessing the three parts of the first plea.

1. The need to obtain DSD’s agreement to share the use of the collection facilities

a) Arguments of the parties

68 The applicant submits that, even though it is not the legal owner of the collection facilities referred to in the first obligation, those facilities must nevertheless be considered to be facilities which belong to DSD given that (i) it finances them; (ii) they are an integral part of the DSD system and; (iii) they bear the mark Der Grüne Punkt. Consequently, any shared use of the facilities by collection undertakings which have concluded a service agreement with DSD should be subject to the applicant’s agreement.

69 In order to establish the need to obtain that agreement, the applicant puts forward, first, the fact that it financed the collection facilities used by the DSD system. In that regard, the applicant bases its arguments, inter alia, on Article 7(1) of the Service Agreement, according to which the remuneration paid by DSD to the collection undertaking constitutes the consideration for all the services supplied by that undertaking as regards, inter alia, the provision of collection containers, the transport and the sorting of packaging and the availability of the waste. The applicant also relies on a judgment of the Landgericht Köln of 18 March 1997, stating that a competitor of DSD benefits from the DSD system in the case of shared use of the collection facilities and that such use is possible only after ‘obtaining [DSD’s] agreement (in return for payment)’. The applicant also cites the principle laid down in Article 242 of the Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’) that contractual obligations should be performed in good faith imposing on contractors the obligation to take particular precaution in long-term contractual relations involving close economic cooperation.

70 Similarly, it is necessary to obtain the applicant’s agreement in the case of shared use of the collection facilities in order to enable it to respect its obligations under the Packaging Ordinance, both in terms of the need to ensure that the whole territory is covered and the need to comply with the recovery rates and to prove the volume flows for each Land (second sentence of Paragraph 10 of the Service Agreement; points 1.1 and 1.5.1 of the fourth agreement amending the Service Agreement and the judgment of the Verwaltungsgericht Gieβen (Administrative Court, Gieβen, Germany) of 31 January 2001). That agreement is also required to ensure that the packaging forming part of the DSD system and bearing the logo Der Grüne Punkt is actually brought by the consumer to the corresponding system, namely to the collection facilities bearing that logo.

71 The Commission and Landbell point out that the financing of the collection facilities is a logical consequence of the Service Agreement, which determines the services requested and the remuneration paid in consideration. In addition, the applicant did not invoke Article 242 BGB during the administrative proceedings and its current position is contrary to that which it adopted in that context. In addition, the obligations under the Ordinance apply to DSD in the same way as they apply to any other operator placed in the same position and the affixing of the mark Der Grüne Punkt to the collection facilities is of no importance to the consumer, who essentially associates those facilities with the type of material to be recovered. Landbell also claims that all the local authorities of the Land Hessen accepted that their exemption systems use the same collection facilities as those used under the DSD system.

b) Findings of the Court

72 It is apparent from the contested decision that, during the administrative proceedings, DSD gave a commitment to the Commission not to require collection undertakings to work exclusively for the DSD system and to refrain from requiring those undertakings to use their own collection facilities exclusively for the performance of the Service Agreement (see paragraph 17). Similarly, DSD also gave a commitment to the Commission to refrain from making the use by third parties of the collection facilities of DSD’s contractual partners subject to its agreement (see paragraph 21).

73 Those commitments concern, first, the collection undertakings, which are DSD’s contractual partners and, second, the undertakings wishing to have access to the collection facilities of DSD’s contractual partners. They address the concerns expressed by the Commission in the context of the administrative proceedings in respect of both the possible application of Article 81(1) EC to the Service Agreement, if it were found to contain an exclusivity clause in DSD’s favour in respect of third party access to the collection facilities (see paragraph 35), and the possible application of Article 82 EC, if it were established that DSD’s wish to subject the shared use of the collection facilities to its agreement falls within Article 82 EC (see paragraph 20).

74 In order to address those concerns DSD proposed the abovementioned commitments. The commitment reproduced in recital 72 of the contested decision is particularly illustrative in that regard, since it was proposed in order to address the Commission’s concern regarding DSD’s initial demand that the shared use by third parties of the collection facilities of its contractual partners should be subject to its agreement (recitals 57, 58, 136 and 137 of the contested decision). That commitment was also intended to reassure the Commission by showing it that DSD had waived its right to bring actions to restrict use of the type described in the judgment of the Landgericht Köln of 18 March 1997, which had been brought by DSD on the basis of the German law on unfair competition against a competitor which was seeking to use certain collection facilities of the DSD system free of charge.

75 It should be pointed out that the commitments proposed by DSD were taken into account by the Commission in assessing the Service Agreement notified by DSD. That is true both in the examination of any restriction of competition under Article 81(1) EC concerning the access of collection undertakings to the facilities (see paragraphs 33 to 36, recitals 133 to 140 of the contested decision), and in the analysis under Article 81(3) EC in respect of assessing the possibility of maintaining competition (see paragraph 41; recitals 158 to 163 of the contested decision). In the contested decision the Commission refers expressly, by way of example, to the commitments in concluding that the Service Agreement does not tie the collection undertakings exclusively to DSD and that the collection undertakings may therefore propose their services to DSD’s competitors both freely and without unnecessary obstacles (see paragraph 46, and recital 176 of the contested decision).

76 After the administrative proceedings, the applicant has nevertheless submitted, before the Court, that any shared use of the collection facilities of its contractual partners requires its agreement.

77 First, the applicant claims that that requirement results from the fact that it participated in the financing of the collection facilities used by the DSD system through the remuneration paid under the Service Agreement. It must be pointed out, in that regard, that the DSD system is the first approved exemption system in the whole of Germany and that its importance is considerable in that country, in so far as it represents approximately 70% of packaging capable of being collected in Germany and at least 80% of the demand in the German market for collection from consumers (see paragraph 29). It thus goes without saying that DSD is the first and primary, if not only, source of revenue for collection undertakings in respect of the collection and sorting of packaging.

78 However, the applicant does not dispute that it is the task of the collection undertakings and not of DSD to make the necessary investments for the collection and sorting of packaging (recital 151 of the contested decision). Similarly, it does not dispute that the sorting facilities which did not exist until then required considerable investments from the collection undertakings (recital 53 of the contested decision). It is also to enable those undertakings to redeem their investments, which have been estimated at ten billion German marks (DEM) during the lifetime of the Service Agreement, that the Commission accepted that the DSD exclusivity clause in favour of the collection undertakings should be quite substantial in duration (see paragraph 39). That duration thus seeks to ensure the profitability of investments made by collection undertakings and not to enable DSD to assert a right to monitor the use of those investments.

79 In addition, examination of the Service Agreement shows that DSD does not bear the risks related to the investments necessary to implement the DSD system by means other than the abovementioned exclusivity clause. Thus, DSD is not responsible for the risks incurred by collection undertakings in using the system (Paragraph 5(1) of the Service Agreement). Similarly, in the event of termination of the Service Agreement, DSD neither repays the investment of the collection undertakings nor pays damages for it (Paragraph 9(3) and (4) of the Service Agreement). In addition, it is apparent from Paragraph 7(1) of the Service Agreement that the fee paid by DSD to its contractual parties is proportional to the weight of the packaging collected, which means that, if a collection undertaking stops collecting packaging for DSD, the latter does not have to remunerate that undertaking for investments made.

80 Furthermore, DSD does not take into account the fact that, in the case of shared use, the Commission expressly recognised, in the contested decision, that it had the right to ensure that it is not charged for any service provided by the collection undertakings for a third party and, consequently, authorises DSD to reduce the remuneration payable to its contractual partners (see paragraph 35). That makes it possible to guarantee DSD that shared use will not be at its cost in terms of remuneration paid to the collection undertakings. There can thus be no ‘free usage’ of the collection facilities, as was the case in the judgment of the Landgericht Köln, at a time when the German Packaging Ordinance had not yet been revised and when DSD was not in a position to reduce its payments to the collection undertakings in proportion to the shared use of the collection facilities.

81 Finally, as regards the argument based on Article 242 BGB, which in the applicant’s view imposes obligations on contractual partners to take particular precaution – although it is difficult to perceive in what way they could show the need for DSD to agree to shared use – the Court can only find that, since that argument based on German law was not raised during the administrative proceedings, the Commission cannot be criticised for not having taken it into account when adopting the contested decision.

82 Consequently, the fact that DSD was the first exemption system to call on the services of collection undertakings and that it is the primary, if not the only, source of revenue for those undertakings is not sufficient to establish DSD’s right to give its agreement in the case of shared use.

83 Second, the applicant submits that its agreement is necessary in the case of shared use of the collection facilities in order to enable it to comply with the obligations resulting from the Packaging Ordinance and to ensure that packaging which forms part of the DSD system is effectively put back into that system by the consumer.

84 In that regard, it should be pointed out that the obligations resulting from the Ordinance apply to DSD as they do to any other exemption system operator. In addition, the provisions of the Service Agreement relied on by DSD do not establish DSD’s right to make the shared use of the collection facilities of its contractual partners subject to its agreement. Thus, the second sentence of Paragraph 10 of the Service Agreement does not concern the case of shared use of the collection facilities but that of an amendment to the organisation of the DSD system and that provision merely states that a different organisation of that system requires the agreement of the contracting parties and the local authority concerned. As will be explained below, shared use does not prevent the DSD system from satisfying its obligations under the Ordinance (see paragraphs 161 to 170). Equally, points 1.1 and 1.5.1 of the fourth amending agreement do not concern packaging, which is the only relevant item in the present case, but ‘additional materials which are not packaging’. In addition, in the judgment of 31 January 2001 the Verwaltungsgericht Gieβen did not examine the need for DSD to agree to shared use of the collection facilities but merely found that the Lahn‑Dill‑Kreis (Lahn‑Dill district) had to come to an agreement with the applicant on a collection and recovery system that they had set up and which did not constitute a system consistent with Paragraph 6(3) of the Packaging Ordinance.

85 Moreover, in respect of the alleged need to preserve the role played by the mark Der Grüne Punkt at the stage of collecting the packaging, it should be noted that it is apparent from the documents before the Court that numerous collection facilities do not bear that mark (see paragraph 189). In addition, consumers do not associate the bins with that mark but with the type of packaging (sales packaging) and, in particular, the type of material (lightweight materials, paper/card, glass etc.) to be placed in the different types of collection facilities. The example of the joint collection of printed matter (newspapers and magazines) and packaging made of paper and card, given in the contested decision, illustrates the possibility of a shared use of the collection facilities without the need to take account of any affixing of the mark Der Grüne Punkt to those facilities (see paragraph 26).

86 Therefore, the fact that DSD was the first exemption system to integrate the collection facilities in its system or the first system to use the mark Der Grüne Punkt to identify its system is not sufficient to establish its right to make shared use subject to its approval.

87 In any event, even supposing that the applicant could rely on a right to give its approval for the shared use by third parties of the collection facilities of its contractual partners – which, as is apparent from the preceding paragraphs, is in no way established – the Court cannot but find that, during the administrative proceedings, the applicant stated that it had waived its claim to such a right. Subject to a specific argument relating to the commitment reproduced in recital 72 of the decision – which will subsequently be examined (see paragraph 218 et seq.) – the applicant does not challenge the validity or the legality of the different commitments put forward during the administrative proceedings to address the concerns voiced by the Commission.

88 Those commitments had the effect of clarifying the content of the Service Agreement notified by DSD, for the purposes of obtaining negative clearance or an exemption, by showing the Commission the way in which DSD intended to act in the future. The Commission thus legitimately took account of those commitments in its assessment in such a way that DSD obtained the decision granting exemption which it sought. Therefore, the Commission was not obliged to take a stance on whether or not DSD has the right to make the shared use of the collection facilities subject to its agreement, given that, in its commitments, that undertaking had agreed to refrain from opposing such shared use.

89 Consequently, the Commission rightly adopted the contested decision without taking into account DSD’s alleged right to oppose shared use, because commitments had been given to that effect by DSD to address the problems identified by the Commission. Therefore, it is not the task of the Court to examine the legality of that decision in the light of a right which the applicant had waived.

2. The first part, alleging the lack of need to share the use of the collection facilities

a) Arguments of the parties

90 By analogy with the case-law on essential facilities (Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission (‘Magill’) [1995] ECR I‑743, paragraphs 53 and 54; Case C‑7/97 Bronner [1998] ECR I‑7791, paragraph 41; Joined cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services and Others v Commission [1998] ECR II‑3141), the applicant claims that the shared use, imposed by the first obligation, must be indispensable for the activity of DSD’s competitors, which is not so in the present case.

91 In relation to exemption systems, the applicant submits that those systems can access approximately 70% of the market without resorting to shared use. It states that approximately 70% of the packaging treated under its system (packaging made of glass, most packaging made of paper and card, and lightweight packaging in the South of Germany) is collected by voluntary collection systems, namely either by means of containers placed at designated sites to that effect or by means of waste collection centres. Those systems are the rule and not an ‘ad hoc’ solution, as pointed out in the decision (see paragraph 34). It is therefore sufficient that competitor collection systems install their own containers to avoid having to resort to shared use. The applicant also gives the example of the ‘blue bag’, used in April 1998 by Landbell to collect certain types of packaging in the Lahn-Dill-Kreis, to illustrate that a separate collection system from the DSD system may be put in place without difficulty. In addition, it is apparent from the Order of the Verwaltungsgerichtshof Kassel (Higher Administrative Court, Kassel, Germany) of 20 August 1999 that competing collection systems could be used ‘alongside each other’, which means that they could use their own collection facilities.

92 In relation to self‑management solutions, the applicant points out that such systems cannot, generally speaking, collect packaging in collection facilities situated close to private households, as would however be possible as a result of the first obligation. That prohibition is decisive in terms of respecting the recovery rates laid down in the Ordinance. By way of exception, the applicant acknowledges that self‑management solutions may collect packaging from, or close to, private households in marginal cases, namely from small craft undertakings, small businesses and industrialists and mail‑order companies (see the observations of the German authorities, p. 7). However, in those two periphery fields, self‑management solutions already use their own collection facilities and shared use is thus not necessary.

93 Finally, the applicant submits that the decision infringes Article 253 EC by not stating why shared use is indispensable for the activity of DSD’s competitors. As regards collection facilities, the decision should contain studies on the structure of the market and on the alleged restrictions of competition in order to establish how shared use is indispensable. In that regard, the applicant points out, in recital 160 of the contested decision, which concerns the spatial economics, collection logistics and traditions of waste collection established among consumers (see paragraph 41), that the Commission does not base its findings on variable facts. Similarly, merely stating in that same recital that the duplication of collection facilities is ‘economically difficult in many cases’ is not sufficient. In respect of sorting facilities, the applicant notes that the decision does not contain any reasons explaining why their use needs to be shared, unless that reason is the general indication, in recital 182 of the contested decision, that such use is necessary to prevent the elimination of competition.

94 The Commission considers that the reference made to the case-law on essential facilities is inappropriate given that the collection facilities do not belong to DSD and that third parties must be able to use them without its agreement. In the present case, it should be considered, rather, that the decision grants an exemption under Article 81(3) EC to a restriction of competition by attaching to that exemption an obligation aimed at ensuring that competition is maintained. In that regard, the decision states, in recitals 133 to 139 (see paragraphs 33 to 36), the reasons why the access of DSD’s competitors to collection facilities is essential. Equally, the exclusivity clause linking DSD to the collection undertakings, examined in recitals 128, 160 and 162 of the contested decision, would restrict the arrival of competitors on the market considerably (see paragraphs 30 and 40). The Commission claims, essentially, that if the first obligation was not imposed, the exclusivity clause uniting the applicant and the collection undertakings would have the effect of preventing the entry of DSD’s competitors into the market for collection from consumers. Consequently, the contested decision is sufficiently reasoned in that regard.

95 As regards the criticism concerning the shared use of the collection facilities for exemption systems, the Commission and Landbell submit that such use is necessary to enable effective competition. Landbell also states that, from the beginning, the DSD system has shared the communal collection facilities which existed for collecting packaging made of paper, card and glass.

96 As regards the criticism in relation to the shared use of collection facilities for self‑management solutions, the Commission observes that such use is envisageable only where there is an overlap between the collection points of the self‑management solutions and those of the DSD system under national law. Therefore, the Commission observes that the first obligation applies to situations where self‑management solutions are authorised to collect from consumers. In such a case, the Commission states that shared use will occur only where the collection points may be equipped with one facility only. Furthermore, the Commission notes that, in respect of packaging arising from the mail‑order trade, self‑management solutions will only need to share use where the turnover of their customers is so low that it would not be economically viable to install collection containers at a ‘reasonable distance’ from the place of establishment of those customers.

97 As regards the criticism of the lack of reasoning as to why shared use of the sorting facilities is necessary, the Commission raises the point that the applicant does not take into account the fact that, in the case of shared use of the collection facilities, it is obviously necessary to sort packaging together.

b) Findings of the Court

98 By way of a reference to the Magill case-law, which concerns a situation in which the party concerned had an incontestable power of disposal over the facilities at issue – which is not the case here (see paragraphs 87 to 89) – the applicant submits, in essence, that the first obligation must be annulled in so far as it imposes the shared use of the collection facilities, including the sorting facilities, even though it is not necessary to enable the activity of exemption systems and self‑management solutions and without sufficient reasons under Article 253 EC.

99 In order to examine those arguments, it should first be noted that, in recital 182 of the contested decision, the Commission states clearly that the purpose of the first obligation, under which DSD may not prohibit collection undertakings from concluding contracts with DSD’s competitors authorising those competitors to use their containers and other collection and sorting facilities, is to ‘prevent the elimination of competition on the relevant markets’, namely the market for collecting packaging from consumers and the upstream market in the organisation of the take-back and recovery of packaging from consumers (see paragraph 48, recital 182 of the contested decision, in conjunction with paragraph 46 and recital 176 of the contested decision for identification of the relevant markets).

100 In addition, as regards the meaning of the term ‘organisations competing with DSD’ in the first obligation, a distinction must be made between the situation of exemption systems, which indisputably compete with DSD on the two markets referred to, and self‑management solutions, which have only a marginal impact on those markets, given that they must, in principle, collect packaging at the point of sale or in the vicinity of that point and not from final consumers (see paragraphs 5 and 6).

i) The need for shared use in respect of competing exemption systems

101 In essence, it is considered in the contested decision that the different types of facilities used by the DSD system throughout Germany form a bottleneck to which access is necessary to enable other exemption systems to compete with DSD on the market for collection of packaging from consumers and, consequently, to be active on the upstream market in the organisation of the take-back and recovery of packaging from consumers.

102 For that purpose, the facilities covered by the first obligation are more precisely defined as the ‘containers or other facilities for the collection and sorting of packaging’ of the collection undertakings which have concluded a service agreement with DSD. Those facilities are also referred to in the contested decision as ‘collection infrastructures’ (recitals 162, 164, 171 and 176 of the contested decision) or under the general term ‘collection facilities’ (recitals 164 and 182 of the contested decision). According to that decision, at issue are containers placed close to the households of the consumers on a site provided for that purpose and the infrastructures necessary to collect the plastic bags or to empty the bins which have been distributed to consumers by the collection undertaking (recital 32 of the contested decision).

103 Similarly, in so far as the sorting of the material is the responsibility of the collection undertakings, the notion of collection facilities also includes specialised centres in which that sorting is generally carried out. That explanation, set out in recital 32 of the decision, makes it possible to understand why the shared use of collection facilities also concerns sorting facilities. The collection phase is only the first stage in the process of recovering packaging. The sorting stage is logically the next stage in that process and the necessary corollary. Therefore, as of the moment when the collection undertakings may collect the packaging belonging to the DSD system and the packaging belonging to other exemption systems, those undertakings may also sort the quantities collected on behalf of those different systems. The applicant is well aware of that since the Service Agreement envisages both the collection and sorting of packaging. It is also for that reason that the Commission considers that the market for collection of packaging from consumers includes both the collection of packaging and the sorting of it according to its use, which are two different activities requiring different infrastructures, but which constitute a single market as a result of the fact that DSD requires both of those services together (recital 87 of the contested decision).

104 It can thus not be claimed that the contested decision does not contain sufficient reasons for the inclusion of sorting facilities in the general term collection facilities and the complaint put forward in that regard by the applicant must be rejected.

105 In order to establish the need to provide for shared use of the collection facilities to enable exemption schemes competing with DSD to gain access to, and to remain on, the markets for collection and the organisation of the take back and recovery from consumers, the decision examines the role played by the collection undertakings in the context of an exemption system and the characteristics specific to collection facilities.

106 As regards collection undertakings, the decision rightly points out that it is economically advantageous to entrust the task to one collector in each designated area since the collection services from consumers are characterised by marked network effects and effects of scale and scope (recital 160 of the contested decision). Thus, the fact that DSD contracts a single collection undertaking for a specific area makes it easier to obtain the authorisation and information necessary to satisfy the applicable legislation and enables the collection of packaging in the whole of the area concerned without the need to contract several companies.

107 The decision also rightly points out that for reasons of spatial organisation and collection logistics it is quite unlikely that another collection system will target the collection undertakings which do not participate in the DSD system, which represents 80% of the demand on the market for collection from consumers (recital 128 of the contested decision). The fact that 80% of packaging capable of being collected from consumers is already covered by a network of collection undertakings authorised by the local authorities makes it much more difficult to put another network in place alongside DSD. It is on that basis that the Commission considers that the duplication of the network put in place by the collection undertakings forming part of the DSD system seems quite unlikely.

108 As regards the collection facilities as such, the contested decision rightly points out that there are considerations of spatial economics, collection logistics and traditions of waste collection established among consumers which make it economically difficult in many cases to duplicate the arrangements for collection from consumers (recital 160 of the contested decision). That is understandable inasmuch as the duplication of facilities is neither in the interests of the public authorities, which issue the necessary approval and authorisation, nor in the interests of the consumers, whose cooperation is required in order for exemption systems to work, since they are the ones who place the packaging in the bag to be collected, in the bin to be emptied or in the relevant container.

109 From that point of view, asking consumers to fill two or more bags with packaging not depending on the material but on the exemption system used, or asking them to store in their homes two or more different containers to be emptied depending on the system used would be counterproductive, or even incompatible with the way in which competition is organised when the manufacturer or distributor of packaging decides to engage several exemption systems to be sure that the packaging is taken back and recovered (see Case T‑151/01 DSD v Commission [2007] ECR II‑0000, paragraphs 129 to 139, in which the Court sets out the content of the explanations given at the hearing in respect of the functional workings of systems combining several exemption systems to ensure that packaging is taken back and recovered). It is in that way that the term ‘traditions of waste collection established among consumers’ (recitals 93 and 160 of the contested decision) needs to be understood. Those consumers wish to contribute to improving the environment but in a way which produces the least possible inconvenience for them.

110 Similarly, the multiplication of systems for collecting bags and emptying containers, just as the multiplication of containers or of sites provided to enable consumers to dispose of packaging close to their homes, is not economically rational in so far as available space is limited (recital 93 of the contested decision) and in so far as those same containers may be used by two or more exemption systems in the same way as is currently practised as regards, first, packaging made of paper and card which is collected under the DSD system and, second, printed matter (newspapers and magazines) which is collected by the municipal areas (recital 32 of the contested decision). The Commission was therefore entitled to take spatial economics and the nature of collection facilities into consideration when assessing under what conditions it was possible to enable exemption systems to gain access to consumers.

111 DSD is perfectly aware of those sociological and economic considerations and took account of them when setting up its system. From the outset, DSD decided to use the pre‑existing communal collection facilities to collect packaging made of paper, card and glass. Those pre‑existing facilities thus enabled the DSD system to be able to be set up quickly and efficiently in order to reach easily the consumers who were already used to using the sites provided for handing in that type of packaging.

112 It is apparent from the above that the contested decision sets out, to the requisite legal standard, the reasons why the facilities of the collection undertakings which have concluded a Service Agreement with DSD form a bottleneck for the exemption systems in competition with DSD, including Landbell in particular.

113 In those circumstances, allowing DSD to prevent collection undertakings from concluding and applying agreements with DSD’s competitors would effectively deprive those competitors of any real opportunity of entering, and remaining on, the market for collection from consumers and the Commission may legitimately conclude that shared use is necessary to prevent the elimination of competition on that market.

114 That conclusion is not called into question in the arguments raised by the applicant to criticise the need for exemption systems to share use.

115 Thus, the fact that 70% of the weight of the packaging collected by the applicant is collected by means of packaging being taken voluntarily to a container or a waste collection centre and not by bag collection or bin emptying systems does not call the above reasoning into question, namely that both collection facilities used by the voluntary collection systems and the collection infrastructures used by the take‑back system constitute a bottleneck which the exemption systems in competition with DSD must be able to access in order to penetrate the market for collection from consumers.

116 Similarly, the example of the ‘blue bag’ set up by Landbell in the Lahn‑Dill‑Kreis, submitted by the applicant as an example of how an independent take‑back system may be set up, cannot hide the fact that that example did not concern a Land but merely a district and thus prevented authorisation as an exemption system of any kind, that it was a pilot project put in place with the support of the local authorities and that DSD brought an action against that system. In addition, with effect from the decision, Landbell was in fact able to enter the market for collection from consumers as an exemption system for the Land Hessen, where Landbell uses, with the agreement of the undertakings at issue and the local authorities concerned, the same collection facilities as those which are used by the DSD system.

117 Finally, the quotation of a passage from the Order of the Verwaltungsgerichtshof Kassel of 20 August 1999, which envisages the setting-up of exemption systems ‘alongside each other’, does not lead to the conclusion that separate collection facilities must be used by competing exemption systems.

118 It follows from the above that the contested decision establishes, to the requisite legal standard, as regards the Commission’s obligations under Article 81 EC and the duty to give reasons, why shared use of the collection facilities, including the sorting facilities, of undertakings which have concluded an agreement with DSD is necessary to enable competing exemption systems to penetrate the market for collection from consumers, and consequently to be active on the upstream market in the organisation of the take-back and recovery of packaging from consumers.

119 Consequently, the applicant’s arguments alleging the erroneous or insufficient reasoning of the contested decision as regards the need to guarantee shared use to maintain competition between exemption systems must be rejected.

ii) The alleged need for shared use in respect of self‑management solutions

120 As DSD is an authorised exemption system in all of the German Länder, it is clear that the term ‘organisations competing with DSD’ referred to in the first obligation refers, primarily, to all competing exemption systems, that is to say all the systems authorised by the German authorities to take back and recover packaging from consumers. The question does arise, however, as to whether that term also includes self-management solutions. In that regard, the applicant submits that shared use is not necessary for self-management solutions, although the Commission states in its submissions that the first obligation applies to self‑management solutions where they are authorised to collect directly from consumers.

121 The Court considers that, for the following reasons, the first obligation must be interpreted as meaning that the term ‘organisations competing with DSD’ includes only exemption systems and not self‑management solutions.

122 First of all, it is incontestable that self‑management solutions must, in principle, collect packaging at, or in the vicinity of, the point of sale and not from consumers. Such an interpretation is based on the wording of the Packaging Ordinance (see paragraphs 5 and 6). It is also based on the observations of the German authorities submitted to the Commission during the administrative proceedings, from which it is apparent that the ‘quotas which have to be met are to be met exclusively by taking back sales packaging at, or in the immediate vicinity of, the actual point of sale and that any additional collections organised near private dwellings may not count towards these quotas’ (observations of the German authorities, pages 3 to 6, and recital 15 of the contested decision). In that regard, it cannot be claimed that self‑management solutions and exemption systems are in direct competition as regards collection from consumers.

123 Next, it should be noted that the parties no longer challenge that, by way of exception from that principle, self‑management solutions may play a role on the margins of the market for collection of packaging from consumers and, consequently, on the upstream market in the organisation of the take-back and recovery of packaging from consumers. Thus, in the context of the definition of the market for collection, the Commission states that, if the view set out by the German authorities should prevail (see paragraph 122), ‘self‑management arrangements will exert demand only on the margin of this market, particularly in respect of collection points deemed equivalent to private households, or in the case of delivery to the final consumer’ (recital 87 of the contested decision, read in conjunction with recital 15 of that decision, see also recital 159 of the contested decision). Similarly, the Commission states, in response to DSD’s submission that collection from consumers was not possible in the context of self‑management solutions, that ‘it is not disputed, however, that even self-managers must collect packaging from the vicinity of the final consumer if the goods are delivered to the final consumer’s address, as is the case for example with mail order or deliveries by small traders’ (recital 167 of the contested decision).

124 In addition, in their pleadings, the parties agree that the intervention possibilities of a self‑management solution on the market for collection from consumers are restricted to two cases of overlap defined in the Packaging Ordinance. The first of those cases concerns mail-order companies which use a self‑management solution. Under the sixth sentence of Paragraph 6(1) of the Packaging Ordinance, in the case of mail-order ‘measures shall be put in place to ensure the taking back of packaging at an acceptable distance from the final consumer’. That means that the notion of taking back from the point of sale, which, in principle, characterises the self‑management solution, must be able to be applied here in the vicinity of the consumer. The second case concerns the situation where the addressee of the packaging is treated as a consumer in the Ordinance. It is thus apparent from the second sentence of Paragraph 3(10) of the Ordinance that ‘cafes, hotels, canteens, government offices, barracks, hospitals, educational establishments, charitable organisations, the offices of professional people, agricultural undertakings and craft enterprises, excluding print shops and other paper-using businesses, which can have their packaging material disposed of at the rate normally associated with private households by way of traditional means of collection for paper, card, board and other lightweight packaging and containers no greater than 1 100 litres for each group of material’ are considered to be consumers.

125 Finally, by contrast with the exemption systems competing with DSD, in respect of which the decision states why the collection undertakings which are contractual partners of DSD and their collection facilities constitute a bottleneck, the Commission does not explain why it is necessary for self-management solutions to have access to those undertakings and to their facilities in order to maintain the competition on the relevant markets.

126 On the contrary, in its analysis of the condition concerning the maintenance of competition (see paragraph 40), the Commission states that ‘collection undertakings excluded from the DSD system remain free to offer their services to firms wishing to manage their own waste’ and explains that ‘such arrangements are possible at least in respect of certain combinations of sales packaging and collection points on the margins of the market for collection from consumers’ (recital 159 of the contested decision, with a reference to recital 87 thereof). That explanation supports the conclusion that the Commission was not concerned, or in any case had ceased to be in view of the commitments given by DSD (recital 163 of the contested decision), with the possibility for self‑management solutions to find a collection undertaking to take back and recover packaging from consumers in the cases of overlap laid down in the Ordinance.

127 Such an analysis is confirmed by the fact that the Commission points out, in the context of the assessment of the sensitivity for competition of the exclusivity clause in favour of the collection undertakings (see paragraph 30), that ‘there are only a few particular collection points deemed equivalent to private households, such as hospitals or canteens, which subject to certain conditions relating to collection logistics and types of packaging might conceivably be able to entrust the work to other collectors, which would involve installing additional containers for the purpose’ (recital 128 of the contested decision). That means that it appears possible, in those cases, for two collection systems to coexist.

128 By contrast with exemption systems, which have to meet strict conditions in respect of territorial coverage, self‑management solutions may confine themselves to taking back packaging from where it is marketed. Thus, although it appears difficult, for the reasons given above (see paragraphs 105 to 113), to duplicate all of the facilities necessary for an exemption system, it is easier for a self‑management solution to ensure that a second facility is put in a given place to enable it to collect the packaging which belongs to its system.

129 Consequently, in the absence of explanations as to why shared use could be necessary for self-management solutions in order ‘to prevent the elimination of competition on the relevant markets’, it is apparent from the above that the term ‘organisations competing with DSD’ used in the first obligation must be interpreted as meaning that self‑management solutions are not included, but only exemption systems competing with DSD.

130 Such an interpretation of the term ‘organisations competing with DSD’ is also confirmed in a passage in the decision in which it is expressly stated that shared use of collection facilities by ‘competing systems’ does not concern self‑management solutions. To dismiss an argument raised by DSD against the sharing of the containers by competing systems, the Commission states that that argument relates ‘only to the question whether self-managers are entitled to collect or buy in packaging from the vicinity of the final customer, and does not concern the question of the joint use of receptacles by competing systems’ (see footnote 16 in recital 169 of the contested decision). That quotation, which contrasts self-management solutions and competing systems, clearly excludes self-management solutions from the shared use of collection facilities, which is thus restricted to competing systems, namely exemption systems competing with DSD.

131 In that context, it is not necessary to respond to the applicant’s arguments concerning the unlawfulness of the contested decision in so far as the first obligation relates to self‑management solutions.

132 Similarly, the Court cannot take into account certain arguments raised by the Commission at the rejoinder stage, according to which shared use could be necessary in the case of low turnover, in so far as concerns self-management solutions which deal with packaging supplied in the course of mail‑order, and where a single collection facility may be installed, in a hospital for example, in so far as concerns collection points treated as consumers. Those arguments do not appear in the contested decision (the turnover) or contradict it (the hospital) and the arguments raised by the Commission in the course of the proceedings cannot remedy the insufficiency of the reasoning in the contested decision in that regard (see, to that effect, Joined Cases C‑329/93, C‑62/95 and C‑63/95 Germany and Others v Commission [1996] ECR I‑5151, paragraphs 47 and 48, and Case T‑93/02 Confédération nationale du Crédit mutual v Commission [2005] ECR II‑143, paragraph 126).

3. The second part, alleging that it is impossible to impose an obligation to remedy a possible infringement of Article 81(1) EC and Article 82 EC

a) Arguments of the parties

133 In response to the argument raised in the statement in defence (see paragraph 94), the applicant submits that the possible infringement of Article 81(1) EC or Article 82 EC alleged by the Commission is purely speculative and cannot justify the first obligation which – in any event – can seek only to prevent the elimination of competition on the market on which a restriction of competition has been found, namely the market for collection from consumers.

134 First, the applicant observes that the only restriction of competition identified in the decision, within the meaning of Article 81(1) EC, is to be found in the exclusivity clause concluded by DSD in favour of the collection undertaking (see paragraphs 28 to 32). That restriction concerns the market for collection from consumers and prevents other collection companies from offering their services to DSD, which has the effect of appreciably reducing competition between the collection undertakings in the designated area (recitals 123, 124 and 140 of the contested decision). That restriction has, however, been exempted by the Commission under Article 81(3) EC (see paragraphs 37 to 41), in particular inasmuch as it was not likely to eliminate competition on the market for collection from consumers (recitals 158 and 178 of the contested decision). In those circumstances, the applicant submits that the first obligation, whose stated objective is to enable competitors to access the upstream market in the organisation of collection from consumers (recitals 162 and 177 of the contested decision), is not related to the abovementioned restriction of competition, which does not concern DSD’s competitors on the organisation market, but those of the collection undertakings which are contractual partners with DSD. The first obligation is thus not likely to intensify the competition on the market for collection from consumers.

135 Second, the applicant states that the Commission cannot impose an obligation in order to prevent an alleged threat of restriction of competition or abuse on a secondary market, namely the market in the organisation of the collection from consumers, on which no restriction of competition within the meaning of Article 81(1) EC has been found or, a fortiori, exempted under Article 81(3) EC. In that regard, the applicant points out that, in the decision, the Commission states clearly that the Service Agreement does not confer any exclusivity in DSD’s favour in respect of access to the collection facilities of its contractual partners (see paragraph 36). Similarly, the Commission states that there is no restriction of competition as regards the organisation market (recital 86 of the contested decision). The applicant also submits that there is no evidence to suggest that DSD is likely to enter into such a commitment of exclusivity with its contractual partners or to impose that exclusivity unilaterally. In those circumstances, the market which needs to be taken into account for the application of Article 81(3) EC must be identical to that examined in relation to Article 81(1) EC. In addition, just like the object of the examination under Article 81(3) EC, the possibility of imposing an obligation under Article 8(1) of Regulation No 17 is also limited by the restriction of competition found on the basis of Article 81(1) EC. Article 8 of Regulation No 17 can thus not serve as a legal basis for the imposition of an obligation for the purpose of dealing with an alleged problem of competition.

136 Third, the applicant considers that, even if the Commission could impose an obligation in a decision granting exemption in order to prevent a restriction of fictitious competition on a secondary market, it was not entitled to do so in the form of an obligation, which is a wholly separate measure (Article 15(2)(b) of Regulation No 17), but only in the form of a condition making that agreement ‘eligible for exemption’ (Joined Cases T‑79/95 and T‑80/95 SNCF and British Railways v Commission [1996] ECR II‑1491, paragraph 63 et seq.). That is confirmed by the previous practice of the Commission (quoted in the reply, footnotes 20 and 21), which has almost always coupled its decisions granting exemption with conditions and not obligations, if, and in so far as, it considers a particular form of action to be necessary to prevent the elimination of competition for the purposes of Article 81(3) EC.

137 The Commission submits, as a preliminary point, that the above line of argument is inadmissible in that it is a new plea in law produced out of time for the purpose of Article 48(2) of the Rules of Procedure of the Court of First Instance. In addition, the Commission states that the purpose of the first obligation is to guarantee the commitments given by DSD in order to remedy certain problems identified during the administrative proceedings and certain ambiguities inherent in those commitments. What is important is thus whether the conduct from which DSD agreed to refrain was capable of being examined in the light of Article 81(1) EC. In the decision, the Commission voices its concerns in that regard, which not only relate to the exclusivity clause in favour of the collection undertakings but also the question of the access of competitors to the facilities of the collection undertakings which are contractual partners with DSD. In addition, the Commission notes that its assessment, in the context of Article 81 EC, must not be restricted only to the market for collection from consumers, which in any case has two aspects – the offering of services by collection undertakings on the one hand, and the demand for services by DSD and the other exemption systems on the other – but may also concern the possible repercussions of the Service Agreement on the upstream market in organisation.

b) Findings of the Court

i) Admissibility

138 In response to the Commission’s application that DSD’s line of argument stated above be declared inadmissible since it constitutes a new plea in law produced out of time for the purposes of Article 48(2) of the Rules of Procedure, it should be pointed out that, although that provision does prohibit new pleas in law from being produced in the course of proceedings, a plea which constitutes an amplification of a submission previously made, either expressly or by implication, in the original application and is closely linked to it must be declared admissible. The same applies to a submission made in support of a plea in law (see, inter alia, Case T‑231/99 Joynson v Commission [2002] ECR II‑2085, paragraph 156).

139 In the present case, the line of argument put forward by DSD in the reply merely continues the arguments raised in the application in support of the plea of the unlawfulness of the first obligation in the light of Article 81 EC. In addition, those arguments merely respond to those raised by the Commission in the defence in order to relocate the aim of the action around the finding that the contested decision grants an exemption under Article 81(3) EC to a restriction of competition by attaching to that exemption an obligation based on the need to protect competition. It should be pointed out, in particular, that the applicant’s contention that the first obligation infringes Article 8 of Regulation No 17, submitted for the first time in the reply, is closely linked to that of the infringement of Article 81(3) EC presented in the first plea, given that that plea challenges the legality of the first obligation in the light of the applicable law and that it is precisely Article 8 of Regulation No 17 which enables the Commission to couple a decision granting exemption under Article 81(3) EC with an obligation.

140 In any event, the Commission had the opportunity, in the rejoinder and at the hearing, to submit its comments on what it considers to be a new plea.

141 It follows from the above that the Court must reject the Commission’s application for a declaration of inadmissibility of the arguments raised by the applicant as regards the possibility of imposing an obligation to eliminate a possible threat of infringement of Article 81(1) EC and Article 82 EC.

ii) Substance

142 It is thus necessary to examine the arguments raised by the applicant alleging that the Commission was not able, in the present case, to attach to the decision granting exemption, which was adopted on the basis of Article 81(3) EC, an obligation imposed under Article 8 of Regulation No 17.

143 Under Article 81(3) EC, the provisions of Article 81(1) EC may be declared inapplicable in the case of any agreement between undertakings which contributes to improving the production or distribution of goods or to promoting technical or economic progress (first condition), while allowing consumers a fair share of the resulting benefit (second condition), which does not impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives (third condition) and afford such undertakings the possibility of eliminating co