2001/463/EC: Commission Decision of 20 April 2001 relating to a proceeding pursuant to Article 82 of the EC Treaty (Case COMP D3/34493 — DSD) (Text with EEA relevance) (notified under document number C(2001) 1106)
Date: 2001-04-20
Institutions: European Commission
Subjects: Germany, competition law, designs and models, industrial property, inter-company agreement, packaging product

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 20 April 2001

relating to a proceeding pursuant to Article 82 of the EC Treaty

(Case COMP D3/34493 (cid:151) DSD)

(notified under document number C(2001) 1106)

(Only the German text is authentic)

(Text with EEA relevance)

(2001/463/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Whereas:

Having regard to the Treaty establishing the European
Community,

A. THE FACTS

Having regard to the Agreement on the European Economic
Area, and in particular Article 54 thereof,

Having regard to Council Regulation No 17 of 6 February
1962, first Regulation implementing Articles 85 and 86 of the
Treaty (1), as last amended by Regulation (EC) No 1216/1999
of 10 June 1999 (2), and in particular Article 3 thereof,

Having regard to the Commission decision of 25 October
1996 to initiate proceedings in this case,

Having given the firm concerned the opportunity to make
known its views on the objections raised by the Commission
in accordance with Article 19 of Regulation No 17 and Article
2 of Commission Regulation (EC) No 2842/98 of 22
in certain
December 1998 on the hearing of parties
proceedings under Articles 85 and 86 of the EC Treaty (3),

consulting the Advisory Committee on Restrictive

After
Practices and Dominant Positions on 19 February 2001,

(1)

(2)

I. THE PROCEEDING, AND THE FIRMS CONCERNED

On 2 September 1992 Der Gr(cid:252)ne Punkt (cid:151) Duales
System Deutschland AG (hereinafter: (cid:145)DSD(cid:146)), in Cologne,
notified a number of agreements with a view to
obtaining negative clearance or a decision granting
exemption from the prohibition on restrictive practices.
DSD operates in Germany a countrywide system for the
collection and recovery of sales packaging. The system
is designed to meet the requirements of the German
Packaging Ordinance. The notification concerns those
agreements (the Statutes,
the
Trade Mark Agreement and the Guarantee Agreements)
on which operation of the system is based.

the Service Agreement,

the notification pursuant

to
Following publication of
in which the
Article 19(3) of Regulation No 17,
Commission announced its
taking a
favourable view of the agreements in question, 13 sets
of observations in all were received from interested third
parties (4).
sets of observations
these
concerned various aspects of
the
the application of
Trade Mark Agreement. It was thus objected that the

intention of

Several of

(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ L 354, 30.12.1998, p. 18.

(4) OJ C 100, 27.3.1997, p. 4.

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agreement restricted competition in that it led,
in the
event of alternative contractors being appointed in
to licensees being charged twice,
addition to DSD,
thereby
not
rendering
worthwhile.

financially

solutions

such

the Commission received
On 19 November 1997,
comments from a competing waste disposal
firm in
which it was pointed out that, owing to the expected
extra cost, the Trade Mark Agreement in its notified
form did not allow an undertaking subject
to the
obligations arising out of
the Packaging Ordinance
((cid:145)obligated(cid:146) undertaking) to work in partnership with a
competing contractor in respect of partial quantities of
sales packaging.

Following talks with officials from the Commission,
DSD submitted, on 15 October 1998, a commitment
aimed at avoiding double charging in the event of a
contracting party taking part
in a regionally active
exemption system.

On 3 November 1999, the Commission sent DSD a
letter informing it that the commitment it had so far
given with a view to avoiding double charging under
the Trade Mark Agreement was not sufficient. The
commitment, which so far covered only exemption
systems,
include
be
self-management solutions for partial quantities of sales
packaging.

extended

needed

to

to

a

the

1999,

hair-care

Goldwell

November

solution for

L’OrØal, Wella,
hairdressing

product
On
15
and
manufacturers
industrial
Schwarzkopf,
supplies
association (Industrieverband Friseurbedarf)
and the
waste disposal contractor Vfw, who wished to organise
the
self-management
in Germany
take-back and recovery of packaging for the hair-care
products used by hairdressers, addressed a formal
complaint
complainants
referred to what were in their view abuses on the part
the Trade Mark Agreement which
of DSD under
impeded the
self-management
a
solution rivalling DSD.
In the complainants’ opinion,
DSD was abusing its dominant position even where use
of the trade mark and the exemption service actually
and demonstrably rendered by DSD diverged.

to the Commission. The

establishment of

Following talks with officials from the Commission,
DSD submitted two further commitments by letter dated
13 March 2000.
It stated, moreover, that it did not
share the Commission’s views regarding modification
and clarification of the commitment submitted on 15
October 1998 (see recital 4) and that it could see no
reason to amend it any further.

(3)

(4)

(5)

(6)

(7)

(8)

On 3 August 2000, the Commission sent a Statement
of Objections to DSD. DSD replied by letter dated 9

in which it

indicated that

October 2000,
it was
prepared to submit a further commitment if this would
meet the Commission’s concerns. It subsequently failed
to produce the promised commitment. In its letter of 9
October 2000, DSD did not request an oral hearing
under Article 5 of Regulation (EC) No 2842/98. By
letter dated 21 November 2000, DSD submitted a newly
worded commitment and at the same time asked that a
hearing be held. The Hearing Officer informed DSD by
letter dated 28 November 2000 that, owing to the
comparatively long period between the submission by
its written comments on the Statement of
DSD of
Objections and the 21 November letter,
its request
could not be acceded to.

II. THE PACKAGING ORDINANCE AS LEGAL FRAMEWORK

the

(cid:145)Verordnung

die
(cid:252)ber
On 12 June 1991,
(Ordinance on
Vermeidung von Verpackungsabf(cid:228)llen(cid:146)
the Avoidance of Packaging Waste, or
(cid:145)Packaging
Ordinance(cid:146)) was adopted in Germany. An amended
version of
the Ordinance entered into force on 28
August 1998. The Ordinance is intended to prevent or
reduce
impact of packaging waste on the
the
environment.

Packaging Ordinance

The
is binding mainly on
packaging manufacturers and distributors. A distinction
is made in Section 3(1) between sales packaging,
transport packaging and secondary packaging. Sales
packaging is packaging which is provided as a sales unit
and is used by the final consumer.
(cid:145)Sales packaging(cid:146)
within the meaning of
the Ordinance may also be
packaging used by the distributive trades, restaurants
and other service providers which makes possible or
non-returnable
supports
crockery
Transport
packaging is packaging which facilitates the transport of
goods, which protects goods in transit between the
manufacturer and the distributor against damage or
which is used for reasons of safety of the transport and
is used by the distributor. Secondary packaging is
layer of
packaging which is used as an additional
packaging over sales packaging and which is not needed
for reasons of hygiene, preservation or protection of the
goods against damage or soiling for sale to the final
consumer.

packaging)
non-returnable

(service
and

cutlery.

both

(9)

(10)

(11)

The terms (cid:145)manufacturer(cid:146) and (cid:145)distributor(cid:146) are defined in
the Packaging Ordinance. A
Section 3(7) and (8) of
manufacturer within the meaning of the Ordinance is
someone who manufactures packaging, packaging
materials or products from which packaging is directly
made, or who imports packaging into the territory
covered by the Ordinance. A distributor within the

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the Ordinance is

meaning of
someone who puts
packaging, packaging materials or products from which
packaging is made, or packaged goods, into circulation,
regardless of the marketing stage. A distributor within
the Ordinance may also be the
the meaning of
sentence of
mail-order
Section 3(10) of
the Packaging Ordinance, a final
consumer is the purchaser who does not sell on the
goods in the form in which they are delivered to him.

trade. Pursuant

to the first

(14)

(15)

(12)

it

the

that

the distributor of

legible labelling to the fact

The rules on sales packaging, secondary packaging and
transport packaging differ. As far as sales packaging is
the Packaging Ordinance
concerned, Section 6(1) of
sales packaging is
provides
free of
obliged to take back from final consumers,
charge, used, empty sales packaging at, or
in the
immediate vicinity of, the actual point of sale and to
quantitative
accordance with
in
recover
requirements of
the Annex to the Ordinance (the
(cid:145)self-management solution(cid:146)). The distributor must draw
the attention of the private final consumer by means of
clearly visible,
the
packaging may be returned (third sentence of Section
6(1)). The distributor’s take-back obligation is limited to
packaging of the type, shape and size, and to packaging
of
those goods, which the distributor carries in his
range (fourth sentence of Section 6(1)). In the case of
distributors with a sales area of less than 200 square
metres,
to
packaging for the brands which the distributor puts into
circulation
6(1)). A
corresponding take-back obligation is also imposed on
mail-order firms, which have, for example, to provide
adequate facilities within a reasonable radius of the final
consumer (sixth sentence of Section 6(1)).

take-back obligation applies only

sentence

Section

(fifth

that

the

of

to Section 11 of
and

Pursuant
manufacturers
responsibility for fulfilling all
obligations to third parties.

distributors may

the Packaging Ordinance,
delegate
take-back and recovery

to manufacturers

Pursuant to the first sentence of Section 6(3) of the
the
take-back and recovery
Packaging Ordinance,
obligation does not
and
apply
distributors participating in an extensive (countrywide)
system which throughout the distributor’s sales territory
guarantees the regular collection of used sales packaging
from the final consumer or in the vicinity of the final
consumer. The system must
likewise meet certain
recovery quotas. There
is no legal obligation to
participate in such a system once it has been set up.
Firms which do not participate continue to be subject to
the individual
take-back obligation. The scope of a
system under Section 6(3) of the Packaging Ordinance is
restricted to sales packaging collected from private final
consumers (6). Private
consumers within the
final
meaning of the Ordinance are, according to the second
sentence of Section 3(10), private households and
in particular
comparable sources of waste generation,
restaurants,
offices,
educational
barracks,
establishments,
the offices of professional
charitable organisations,
people,
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
using
paper,
cardboard, cartons and light packaging with a capacity
no greater than 1 100 litres for each material.

agricultural holdings

hotels,
hospitals,

government

and craft

household

containers

canteens,

normal

for

(13) Germany stated in answer to questions put by the
Commission 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.
The Cologne Regional Court has held, however, that the
quota need not be met only via collections in the
vicinity of a shop (5). Pursuant to Section 6(2) of the
Packaging Ordinance, the packaging taken back by the
distributor pursuant to subsection 1 must in turn be
taken
(previous)
its manufacturer
distributors and must be reused or recycled outside the
public waste-management system.

back

and

by

(5) See Cologne Regional Court judgment of 13 January 2000, ref.

31 0 991/99.

(16)

Pursuant to paragraph 2 of point 4 of Annex I to the
Packaging Ordinance, manufacturers and distributors
have to make known their participation in a system
pursuant to Section 6(3) of the Packaging Ordinance by
marking packaging or by other suitable means (e.g. by
the point of sale or by a
informing customers at
package leaflet). The marking of packaging with a
system mark in the absence of membership of
the
system is not punishable by a fine under the Packaging
Ordinance (7).

(7)

(6) See Section 6(3) and Section 3(1), point 2, and (10), and the third
sentence of paragraph 1 of Annex I to the Packaging Ordinance.
(Question put by the Commission:) (cid:145)Does the Packaging Ordinance
allow a range of packaging to be uniformly marked despite its
being partially disposed of under Section 6(3) of the Packaging
Ordinance (e.g.
in the circumstances provided for in the ninth
sentence of Section 6(1) of the Ordinance), bearing in mind that
the distributor cannot
foresee which specific packaging will be
disposed of in the vicinity of the shop and which will be disposed
of in the vicinity of the home?(cid:146) (Answer given by Germany:) (cid:145)The
marking of packaging with the system mark pursuant to paragraph
2 of point 4 of Annex I in the absence of membership of the
system is not punishable by a fine under the Packaging Ordinance.
It may, however, be caught by other legal provisions, such as trade
mark law.(cid:146)

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(17)

(18)

Recognition as an extensive system within the meaning
of Section 6(3) of the Packaging Ordinance is granted
by decision of the competent authority of the Land. The
fourth sentence of Section 6(3) of
the Packaging
Ordinance provides that the system must be consistent
as
with existing collection and recovery
employed by the local bodies responsible for waste
collection. In practice, the recognition of a system by
the competent Land authority is dependent on a
(cid:145)declaration of consistency(cid:146) being issued by the relevant
body. This means that municipal and rural district
authorities must endorse the agreement concluded in
their territory between the system operator and the
collector.

systems

In an annex to the Ordinance,
the quantitative
conditions for recognition are laid down. Before the
Ordinance was amended, these collection and sorting
quotas were defined by reference to the total amount of
packaging material in the source area (i.e. Land). Thus,
for example, as of 1 July 1995, 80 % of all packaging
material was covered by the collection system. From the
and
materials
aluminium and 80 % of cardboard, paperboard, paper,
plastic and compound packaging had to be sorted into a
quality suitable for recycling. During the period from
1993 until 30 June 1995, reduced quota requirements
applied.

collected, 90 % of

tinplate

glass,

(19) Once the Packaging Ordinance was amended,

this
absolute calculation method was converted into an
individual-system-based calculation method (i.e. one
covering the sales packaging fed into a given system). In
future, moreover, those manufacturers and distributors
who do not participate in a system pursuant to Section
6(3) of the Packaging Ordinance also have to meet these
quantitative requirements. Since 1 January 2000, 75 %
of packaging made of glass, 70 % of packaging made of
tinplate, paper, cardboard and paperboard, and 60 % of
packaging made of composites must be recovered both
by the operators of extensive systems within the
meaning of Section 6(3) of the Ordinance as regards
packaging for which manufacturers and distributors
participate in their system and by manufacturers and
distributors who opt for a self-management solution. At
least 60 % of packaging made of plastic must be
recovered, and at
this quota must be
least 60 % of
recovered using processes whereby new, physically
is produced or the plastic remains
identical material
available for another material use ((cid:145)reusable(cid:146) material
for which no
process). Packaging made of material
to be
specific recovery methods are prescribed is
and
recycled
as
a
economically

far
is
as
reasonable.

technically
the

possible
case

of

In

solution,

compliance with

self-management
the
take-back and recovery requirements must be certified
by an independent expert on the basis of verifiable
documents (paragraph 1 of point 2 of Annex I). An
exemption system must furnish verifiable evidence of
the quantities collected and recovered. At the request of
competent authority, the evidence must be confirmed
by an independent expert’s report (paragraph 4 of point
3 of Annex I).

the consumer and of

system is possible and that

(20) Germany has indicated that a simultaneous combination
of the self-management solution and participation in a
Section 6(3)
therefore
participation in a Section 6(3) system with a certain
quantity of a packaging product is also possible. In the
interests of
the authorities,
however, a degree of transparency must be introduced,
such as to show which packaging is subject
to the
take-back obligation at, or in the immediate vicinity of
the shop and which is not. Germany has also confirmed
the final
to the Packaging Ordinance,
that, pursuant
consumer
to leave the
free to decide whether
packaging in the shop or to return it to the shop later,
or to take it to a disposal point near his home (8).

is

(21) Where the distributor and the manufacturer do not fulfil
the obligations laid down in the first sentence of Section
6(1) and the first sentence of Section 6(2) of
the
Packaging Ordinance by taking back packaging at the
point of sale, they have to ensure, pursuant to the ninth
sentence of Section 6(1), read in conjunction with the
fourth sentence of Section 6(2), of the Ordinance that it
is taken back using a system pursuant to subsection 3.
Germany has further indicated in this connection that a
self-manager who has not met his recovery quota is
required to participate in a Section 6(3) system with the
amount of packaging that is necessary in order to meet
the quota.

(22)

For transport packaging and secondary packaging, there
are similar take-back obligations. However, there is no
possibility of release from these obligations by way of
participation in a system. Nor are there any take-back

(8)

(cid:145)Is it correct

(Question put by the Commission:)
to say that,
pursuant to the Packaging Ordinance, the final consumer is free to
decide whether to leave the packaging in the shop or to bring it
back there, or to take it
to a disposal point near his home?(cid:146)
(Answer given by Germany:) (cid:145)The Packaging Ordinance does not
contain any express provision requiring the final consumer to
return the packaging. The assumption contained in the question is
therefore correct.(cid:146)

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and quota requirements. Distributors who offer goods in
secondary packaging are obliged to remove it when
handing goods over to final consumers or to make
available at
sale facilities where final
consumers can return the secondary packaging free of
charge. If the final consumer leaves the goods in their
secondary packaging, it is treated as sales packaging for
the purposes of the Packaging Ordinance.

the point of

the meaning of Section 6(1) and (2) read in conjunction
with Section 11 of the Packaging Ordinance. In other
words, they fulfil directly the take-back obligations of
manufacturers or distributors of sales packaging. A large
number of other undertakings collect and recover
transport packaging.

(23)

In response to questions put by the Commission,
Germany declared back in 1993 that Section 6(3) of the
Packaging Ordinance would not be interpreted as
meaning that the establishment of only one system was
the
possible.
Packaging Ordinance
setting-up of additional disposal
sales
packaging. It was not the legislator’s intention that only
one system should be created in Germany or in each
Land.

allowed
for

systems

The

(27) DSD is financed by fees from undertakings belonging to
the system. Undertakings become members of
the
system by becoming a signatory to the (cid:145)Trade Mark
Agreement(cid:146). By this means, the undertaking acquires the
right, against payment of a fee, to use the Green Dot
trade mark on its sales packaging and, as an actual
service, exemption from the obligation to take back
such packaging.

(24) According to Germany’s explanatory memorandum to
the amended version of the Packaging Ordinance, one
of its basic aims is to enhance competition. This is to be
inter alia, by henceforth putting collection,
achieved,
sorting and recovery services out to competitive tender
and by selling packaging intended for recovery under
competitive conditions. Moreover, the costs associated
with the collection, sorting and recovery or disposal of
each packaging material are to be published.

(28) DSD’s turnover in 1998 was DEM 4,2 billion, and for
1999, a turnover of approximately DEM 3,8 billion is
expected. DSD collected some 5,6 million tonnes of
sales packaging in 1998. Some 17 000 firms are
currently members of the system. It is estimated that a
Trade Mark Agreement has been concluded for some
70 % of all sales packaging put
into circulation in
Germany. The following table shows the amount of
packaging collected by DSD as a proportion of the total
volume of packaging over the period 1995 to 1998:

III. THE COLLECTION AND RECOVERY SYSTEM OPERATED BY
DSD

(25) DSD is

the Packaging Ordinance. At

the only undertaking in Germany which
operates an extensive system for the collection and
recovery of sales packaging within the meaning of
Section 6(3) of
the
beginning of 1993, DSD was
recognised by all
competent authorities in the German L(cid:228)nder. The system
has been in operation since 1992 and has been fully
operational since 1993. It is called a (cid:145)dual(cid:146) system as the
collection and recovery of packaging is effected outside
the public waste disposal system and is operated by a
private undertaking.

1995

1996

1997

1998

5,06

5,45

5,61

5,60

6,96

6,87

6,85

6,86

7,91

7,81

7,81

7,85

63,97 % 69,78 % 71,83 % 71,34 %

72,70 % 79,33 % 81,90 % 81,63 %

Used sales
packaging (1) collected
by DSD (million
tonnes)

Consumption of sales
packaging by
private final
consumers (million
tonnes)

Total consumption of
sales packaging
(million tonnes)

Percentage of total
sales packaging
consumption covered
by DSD

Percentage of sales
packaging
consumption of final
consumers covered by
DSD

(26)

Besides DSD, there are a few other undertakings which
organise the collection and recovery of sales packaging.
However, these undertakings are not extensive systems
within the meaning of Section 6(3) of the Packaging
Ordinance. They operate as a third undertaking within

(1) All estimates of the consumption of sales packaging were prepared
by GVM (Gesellschaft f(cid:252)r Verpackungsmarktforschung Wiesbaden)
(see in particular the packaging recycling statement of March 1999.
Figures for the used sales packaging covered by DSD were supplied
by DSD.

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(29) DSD does not perform the task of collection itself but
employs local (public or private) collecting companies.
DSD has concluded (cid:145)service(cid:146) agreements with those
undertakings. There are 546 collection districts. Some
collectors are DSD contractors
for more than one
district. DSD has concluded agreements with 537
collectors in all. Some of
the collectors are in turn
integrated into larger groups of companies. Under the
service contract, the collector has the exclusive task of
collecting and sorting used sales packaging in a certain
district. The system covers private households and
certain business enterprises. The collector does not
necessarily collect and sort all packaging himself,
subcontractors often being used for the collection and
sorting of certain materials.

Ordinance but only that arising in private households
and comparable sources of waste generation. Transport
packaging is not collected. This restriction of the range
of DSD’s activities has been ordered by the competent
German authority, the Federal Cartel Office.

(33)

The Federal Cartel Office has objected several times to
attempts by DSD to extend the range of its activities.

(34)

(35)

(30)

The system established by DSD collects used sales
packaging made from all kinds of materials. The
packaging is deposited either in containers placed close
to private households or in plastic bags or containers
which have been distributed to individual households.
Sorting the collected material is the responsibility of the
collector. Usually the sorting is done by specialised
undertakings. The collector takes all packaging put into
the containers, regardless of whether or not it bears the
Green Dot mark. Other objects put into the containers
will also be recovered if they are suitable or will be
sorted as waste. In the containers/bags used to collect
sales packaging made of paper/cardboard, the collector
usually also collects old printed matter (newspapers and
magazines). This makes up the larger part (about 75 %)
of
the paper/cardboard collected. The collection of
printed matter is not part of the DSD system and is not
paid for by DSD.

(31) Once the material has been sorted it is conveyed to a
recovery plant either directly by the collector or with
the help of third parties, or handed over to (cid:145)guarantee(cid:146)
companies. These guarantee companies have given DSD
an assurance that they will recover the used packaging.
The guarantee companies are either organised by the
industries producing the relevant packaging materials or
are undertakings specially created for the purpose of
marketing and recovering the collected materials. The
Packaging Ordinance requires that recovery should take
Incineration or landfill do not
the form of recycling.
qualify as recovery.

to start
In October 1992, DSD announced plans
collecting sales packaging which ends up at
large
enterprises and industrial installations. After the Federal
Cartel Office had objected that this would lead to the
exclusion from the market of those collectors which are
not DSD contractors, the project was abandoned. The
Federal Cartel Office expressed the view in this case that
the individual L(cid:228)nder decisions which obliged DSD to
engage in the behaviour in question could not prevent
the Office from stopping these activities. In a settlement
of the case, it was agreed that DSD may collect from
the following premises on the same pattern (in terms of
restaurants,
households:
intervals)
canteens, hospitals, government offices,
educational
establishments, barracks, offices of
liberal professions
and craft enterprises, excluding printers and other
paper-using enterprises, which have containers not
larger than 1 100 litres for each material.

private

for

as

In a second case,
the Federal Cartel Office issued a
formal prohibition order on 24 June 1993 against a
project whereby DSD extended its range of activities to
sales packaging which is not sold in retail outlets and to
transport packaging. The subject of the order was DSD’s
plan to collect, via a subsidiary, sales packaging and
transport packaging made of paper/cardboard and
plastic
and industrial
installations. The Federal Cartel Office saw the bundling
of the demand for collection services as a restraint of
competition within the meaning of Section 1 of the
German Law prohibiting Restraints of Competition.
DSD has not appealed against the order.

commercial

arising at

large

IV. THE TRADE MARK AGREEMENT AS ONE OF THE
AGREEMENTS INVOLVED

(32)

The system operated by DSD does not collect all sales
the Packaging
packaging within the meaning of

(36)

The relationship between DSD and the undertakings
which participate in the system is governed by a

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standard-form agreement, the (cid:145)Trade Mark Agreement
(hereinafter called the
for the Use of the Green Dot(cid:146)
(cid:145)the Agreement(cid:146)). The
(cid:145)Trade Mark Agreement(cid:146) or
Agreement has been amended several
since
times
notification, most recently on 5 September 1994.

following principles: licence fees are calculated without
any profit mark-up; they serve solely to cover the costs
incurred in collecting, sorting and recovering packaging
and the associated administrative costs (Article 4(3) of
the Agreement). The system costs are allocated to the
the
specific groups of materials on the basis of
polluter-pays principle.

(37) Under the Agreement, DSD is the owner of the Green
Dot
registered certification trade mark and grants
manufacturers and distributors the right to mark the
sales packaging which is to be covered by the system.
separately
DSD allows
the
registered
Agreement).

the mark to be used for
1(1)

packaging

(Article

sales

of

(38) DSD undertakes vis-(cid:224)-vis

the participating company
(called the licensee in the Agreement) that it will effect
the comprehensive/nationwide collection, sorting and
recovery of used sales packaging in such a manner as to
exempt participating manufacturers and distributors
from their take-back and recovery obligations under the
Packaging Ordinance (Article 2 of the Agreement).

(43)

The Agreement is renewed for one year at a time, unless
notice is given two months prior to expiry (Article 16).
The licensee is entitled to terminate the Agreement by
giving six months’ notice before it ceases to market
registered packaging in Germany (Article 11(1)).

The licensee is free to register its complete set of
packaging or just specific packaging.

(44) DSD AG is sole owner of the rights to use the Green
Dot mark in Germany. For purposes of using the trade
mark outside Germany, especially in the territory of the
Community, DSD has transferred the rights by way of a
(Packaging Recovery
general
Organisation Europe SPRL), whose registered office is in
Brussels.

to ProEurope

licence

(39)

The other party is obliged to use the trade mark, in a
particular shape and manner, on all registered packaging
for domestic consumption, so that it is visible to the
final consumer. DSD may release it from this obligation
(Article 3(1) of the Agreement).

(45)

(40)

(41)

(42)

The other party has to pay DSD a licence fee for all
packaging bearing the Green Dot mark which it sells on
German territory in accordance with the Agreement.
Exceptions
rule require a separate written
agreement (Article 4(1) of the Agreement; repeated in
Article 5(1), without the possibility of an exception).

to this

The amount of the licence fee is determined according
to the price list valid since 1 January 1995 (Article 4(2)
of
the Agreement). The licence fee is calculated by
adding the weight-related charge and the unit charge.
The former depends on the weight of the packaging and
the material used, while the latter is based on the
volume or surface area of the packaging.

The licence fee may be adjusted unilaterally by DSD.
to the
reduction in it
Any increase or

subject

is

and

take-back

exemption

Private-sector
systems
comparable to DSD’s have also been set up in other
Member States of the European Union in recent years.
them likewise use, under an appropriate
Many of
licensing agreement with ProEurope,
the Green Dot
mark. Currently these systems are: Eco-Emballages SA
(France), Altstoff Recycling Austria AG (Austria), asbl
Fost plus vzw (Belgium), Sociedade Ponto Verde SA
(Portugal), Ecoembalajes Espaæa (Spain), Valorlux asbl
(Luxembourg) and Repak Limited (Ireland). Many of
these,
in their own Member States, have attained a
comparable market position to that of DSD.

(46)

The general licence transferring rights to ProEurope and
the licensing agreements between ProEurope and the
individual systems are not covered by this Decision.

V. COMMITMENTS SUBMITTED BY DSD

(47) DSD has submitted to the Commission a number of
in connection with the Trade Mark

commitments
Agreement.

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Official Journal of the European Communities

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(48)

In order to ensure a transparent, equitable determination
the licence fee, DSD has submitted the following
of
commitment:

(49)

(50)

(51)

(52)

System Deutschland AG undertakes

(cid:145)Duales
to
determine the amount of the licence fee and/or the basis
of its assessment for the use of the Green Dot trade
mark in such a way that costs are allocated in
accordance with the polluter-pays principle to the
specific groups of materials and to let this periodically
be verified (e.g. by an accountant).(cid:146)

does

The Agreement
between
not
undertakings whose registered office is in Germany and
those whose registered office is in some other member
country of the European Economic Area. DSD has also
given the following commitment:

differentiate

(cid:145)Duales System Deutschland AG undertakes to conclude
with manufacturers and distributors of sales packaging
whose registered office is in the European Community
or the European Economic Area agreements on use of
the Green Dot trade mark within the territory covered
by the Packaging Ordinance.
It undertakes to treat
undertakings whose registered office is in one of the
countries referred to in paragraph 1 no differently from
those whose registered office is in the territory covered
by the Packaging Ordinance. The obligations referred to
in paragraphs 1 and 2 may not be derogated from
without
In such cases, Duales System
Deutschland AG undertakes to inform the Commission
immediately.(cid:146)

just cause.

legal,

Since for
technical, organisational and other
reasons it cannot be excluded in certain cases that there
will be a discrepancy between use of the Green Dot
the
mark and the actual or
service, DSD has submitted various commitments in the
light of the concerns expressed by the Commission.

intended availment of

(53) Where packaging is put

into circulation both in
Germany and in other member
the
European Economic Area and participation in the DSD
system in Germany is proposed, DSD has submitted the
following commitment:

countries of

Where packaging for which a licence fee for use of the
Green Dot trade mark has already been paid to Duales
System Deutschland AG is exported from the territory
covered by the Packaging Ordinance to other Member
the European Community or the European
States of
System Deutschland AG
Economic Area, Duales
undertakes
amount paid. This
the
to reimburse
obligation exists only if the manufacturer or distributor
proves that the licence fee for the packaging in question
has been paid and no claim for reimbursement has been
made. Such an obligation to reimburse exists also
vis-(cid:224)-vis manufacturers and distributors which have not
concluded an agreement for use of the Green Dot trade
mark. Duales System Deutschland AG is obliged to treat
as confidential all
information which it obtains on
suppliers and customers of such manufacturers and
distributors.(cid:146)

(55)

(56)

(57)

Since a system’s scope is restricted under Section 6(3) of
the Packaging Ordinance to sales packaging which ends
up in the possession of a private final consumer (see
recital 15), situations may also arise where uniformly
designed packaging ends up partly in the possession of
a private final consumer and partly either with the
distributor (in which case it is not sales packaging and
is hence not covered by systems under Section 6(3))
and/or in the large enterprise/industrial sector, which is
not covered by systems under Section 6(3) either. DSD
has submitted the following commitment in this regard:

(cid:145)Where Duales System Deutschland AG is prevented by
legal reasons from collecting used sales packaging at
certain points, it is obliged vis-(cid:224)-vis those manufacturers
and distributors which are not able to use the Green
Dot trade mark in such a way that it corresponds with
the usual collection points to renounce in writing its
claim to payment of part of the licence fee, subject to
appropriate conditions.(cid:146)

The details of the waiver are set out in supplementary
(cid:145)splitting agreements(cid:146). These
agreements known as
establish how the fee is to be split and the reasons for
doing so. So far DSD has concluded supplementary
agreements with 12 industries. It has explained that the
splitting agreements are not included in the notification.
The
splitting
these
conclusion and substance of
agreements are not the subject of this Decision.

(54)

(cid:145)Duales System Deutschland AG may charge a licence
fee in the European Community or
the European
Economic Area for use of the Green Dot trade mark
only for packaging which has been put into circulation
in the territory covered by the Packaging Ordinance.

(58) Where systems restricted to one or more L(cid:228)nder form an
alternative to the DSD system under Section 6(3), it is
not improbable that uniformly designed packaging will

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Official Journal of the European Communities

L 166/9

be part of the alternative system in those L(cid:228)nder but
the DSD system in the others. DSD has
part of
submitted the following commitment in this respect:

(63)

(cid:145)In the case of packaging which is collected and
processed in another Member State under a system
using the Green Dot trade mark and which is put into
circulation using the trade mark in the territory covered
by the Packaging Ordinance, Duales System Deutschland
AG may not charge a licence fee, if the requirements of
the Packaging Ordinance can be shown to have been
met other than through participation in the system set
up by DSD AG under Section 6(3). This is subject to the
condition that
it should be made clear to the final
consumer on the packaging, in proximity to the Green
Dot trade mark, in words or other suitable form, that
the packaging does not participate in the dual system
set up by DSD AG under Section 6(3) of
the
Ordinance.(cid:146)

(59)

(cid:145)On condition that regional alternative systems to the
current Dual System are created which are formally
approved by the highest competent regional authority
under Section 6(3) of the Packaging Ordinance, Duales
System Deutschland AG is prepared to apply the Trade
Mark Agreement in such a way that licensees are able to
participate in such a system as regards some of their
It will not charge a licence fee under the
packaging.
Trade Mark Agreement
for packaging that can be
shown to be covered by such an alternative system. A
release from the licence fee
further condition for
obligation in respect of packaging bearing the Green
Dot is that protection of the Green Dot trade mark
should not be impaired.(cid:146)

(60) Where manufacturers and distributors dispose of some
of the sales packaging waste themselves and participate
in the DSD system for
the remainder, DSD has
submitted the following commitment:

(61)

in conjunction with Section 11) of

(cid:145)Where, pursuant to Section 6(1) and/or (2) (read, where
appropriate,
the
Packaging Ordinance, manufacturers and distributors
organise the take-back and recovery of some sales
packaging sold in the territory covered by the Packaging
Ordinance and participate in the DSD system for the
remainder
(ninth sentence of Section 6(1)), Duales
System Deutschland AG will not charge a licence fee
under the Trade Mark Agreement for those quantities of
sales packaging which can be shown to have been taken
back in accordance with Section 6(1) and/or (2) of the
Packaging Ordinance. Evidence is to be furnished in
accordance with the requirements of point 2 of Annex I
to the Packaging Ordinance.(cid:146)

(62) Where uniformly designed packaging is put

into
circulation both in Germany and in one or more other
the European Community or the
Member States of
European Economic area and is taken back in those
Member States by a system which uses the Green Dot
the DSD system in
mark but
Germany,
following
commitment:

is not a member of
has

submitted

DSD

the

(64) DSD has

contained

supplied that

explained to the Commission that

the
obligation to furnish evidence
in the
commitment should not be interpreted as meaning that
DSD can first claim licence fees and only repay them if
the
the requirements of
evidence is
Packaging Ordinance are actually met. Rather,
the
undertaking concerned need not pay DSD a licence fee
if
the conditions stipulated in the commitment are
actually met. These conditions include, in particular, the
provision of clear information to the final consumer
that, despite the fact that it bears the Green Dot mark,
the packaging does not participate in the dual system
set up by DSD under Section 6(3) of the Ordinance. By
1 May of the following year, the firm concerned must
the
then prove to DSD that
Packaging Ordinance have actually been met.
the
evidence is not sufficient, DSD can claim the licence fee
on a pro rata basis. As regards the substantive criteria
which the evidence must meet, DSD refers to the
specifications given in the Packaging Ordinance. As the
in the case of a Section 6(1) solution,
law stands,
sufficient
from an
independent expert to the effect that the take-back and
recovery requirements under the sixth sentence of point
2(1) of Annex I (to Section 6) are met. In the case of
participation in a Section 6(3) system, confirmation of
the operator’s participation is also required in principle
in accordance with point 4(3) of Annex I (to Section 6).
The essential point about the evidence, however, from
show in a
DSD’s
that
standpoint,
comprehensible way the
to which, despite
bearing the Green Dot mark, the packaging has not
been introduced into the system operated by DSD.

the requirements of
If

evidence means

certificate

it must

extent

is

a

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Official Journal of the European Communities

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B. LEGAL ASSESSMENT

I. ARTICLE 82(1) OF THE TREATY

1. DOMINANT POSITION

1.1. Relevant market

1.1.1. Relevant product market

(65)

(66)

(67)

and/or

relevant product market

those
The
products
as
interchangeable or substitutable by the consumer by
reason of
their prices and their
intended use.

services which are

their characteristics,

all
regarded

comprises

The purpose of DSD is to organise and operate a (cid:145)dual
private take-back system(cid:146)
for used packaging. The
agreements on which the DSD system is based produce
economic effects at various levels at which value added
is created. The market definition is based on the
agreement concerning the use of the trade mark at issue
in this case.

Analysis of demand

The market in question came into being as a result of
the requirements of the German Packaging Ordinance.
With its adoption, manufacturers and distributors were,
for the first time, placed under an obligation to take
back and recover used sales packaging outside the
public waste-management framework (see recitals 10 to
16). The Ordinance offered the undertakings in question
two options for fulfilling this obligation.

(a) Under Section 6(1) and (2) of

and

distributors

the Packaging
Ordinance, manufacturers
are
required to take back used packaging from the final
consumer free of charge at the place at which it was
originally obtained by the latter or in the immediate
proximity thereof, and subsequently to recover the
said packaging. Manufacturers and distributors may,
the Packaging Ordinance,
under Section 11 of
and
entrust
recovery obligations to third parties.

compliance with their

take-back

(b) Under

the

does

first
obligation

sentence of Section 6(3),
apply

the
to
take-back
manufacturers or distributors who participate in a
system which, throughout the distributor’s trading
area, guarantees
collection of used
regular
packaging directly from the final consumer or at a
place close to the final consumer.

not

a

(68) According to the arrangements established by the
Packaging Ordinance, obligated undertakings thus have
two alternative and, since the same rate of recovery
must be achieved in both cases
(see recital 19),
interchangeable options: the (cid:145)self-management(cid:146) solution
provided for by Section 6(1) and (2) in conjunction with
Section 11 and participation in an exemption system
under Section 6(3).

(69)

(70)

enterprises

from large

Since, however, the scope of a system under Section
6(3) of the Packaging Ordinance is restricted to sales
packaging collected from private final consumers (see
recital 15), these two options are interchangeable only
in the case of such packaging. Sales packaging that is
collected
industrial
installations cannot participate in an exemption system
under Section 6(3). The obligations stemming from the
Packaging Ordinance can accordingly be fulfilled in the
case
a
self-management solution. The demand for take-back
and recovery services for used sales packaging which is
not collected from private final consumers therefore
constitutes a separate (albeit related) market from the
market defined below.

packaging

through

such

sales

only

and

of

undertakings

In the light of this differentiation, an assessment might
conceivable
accordingly be based on the widest
definition of the market as being a single market for
organising the take-back and recovery of used sales
packaging collected from private final consumers. On
Packaging
this market,
Ordinance obligations either by themselves taking back
and recovering used sales packaging or by participating
in a system which exempts them from their obligations.
Both possibilities
to the
obligations to be equally well suited to meeting the
requirements of the Packaging Ordinance regarding sales
packaging collected from private final consumers and
hence are to be considered basically interchangeable.

to those

subject

appear

their

fulfil

(71) However,

an

limit

exemption

facto and de

there are de

system which

jure, differences
between a self-management solution and participation
in
their
interchangeability in the light of particular combinations
of packaging and collection point and which might
that a narrower market definition would be
suggest
more appropriate. The self-management option requires
sales packaging to be taken back at the place where it
was actually supplied or in the vicinity thereof (i.e. in
normal circumstances, at or around the point of sale). In
replying to the Commission’s questions on this matter,
in assessing compliance with
Germany indicated that,
case of
recovery
in the
achieved
to be
rates
self-management, only packaging taken back at
the
place at which it was originally obtained by the final
consumer or in the immediate proximity thereof would

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Official Journal of the European Communities

L 166/11

be taken into account and that any packaging collected
directly from households would be disregarded (see
recital 13). Accordingly, opting for the self-management
solution might, for reasons of organisation or hygiene,
give rise to problems in meeting the stipulated recovery
In the case of packaging obtained by the final
rates.
consumer at a given point of sale, it also presupposes
that the consumer will be willing to dispose of it at or
around the point of sale. This is highly unlikely for the
bulk of consumer packaging given that consumers are
accustomed to disposing of waste close to their homes.

(76)

(72)

the self-management

It would thus appear that, according to Germany’s
interpretation,
solution enables
recovery rates to be fully met solely in the case of
certain combinations of packaging and collection point
(recital 81). For the vast majority of packaging, it will in
fact be possible to meet the recovery-rate requirement
and thus comply with the Packaging Ordinance by (also)
participating in an exemption system. However, if the
forward by the
the Ordinance put
interpretation of
Cologne Regional Court
full
compliance with the rates would generally be attainable
with self-management solutions.

(see recital 13) prevails,

(73)

for

Legally speaking, manufacturers and distributors can be
released from their Packaging Ordinance obligations
solely by participating in a Section 6(3) system. If they
opt
the self-management solution but with the
involvement of a third party in accordance with Section
11 of the Packaging Ordinance, their obligations remain
fully effective until such time as they have been fulfilled
by the third party.

(74)

The said differences might be an argument in favour of
limited substitutability between the self-management
solution and participation in an exemption system from
the demand viewpoint of obligated undertakings.

Analysis of supply

recover sales packaging are not necessarily comparable
to those of a self-management solution or other services
which exist in the waste-management sector.

Recognition as a take-back system within the meaning
of Section 6(3) of
the Packaging Ordinance by the
competent Land authorities and hence exemption from
the
to
compliance with a number of requirements, as set out
in the Packaging Ordinance (see recitals 17, 18 and 19).
The main requirements of such a system are:

obligation

take-back

original

subject

is

(a)

that it operates in an area covering at least that of a
Land,

(b) that it is operated close to the final consumer,

(c)

that regular collections are made,

(d) that certain quotas are met, and

(e)

that it is consistent with the operations of public
waste-management bodies.

(77) All of

a

these requirements, but particularly the one
initial
imply substantial
relating to area of coverage,
period.
and
investment
development
long
also be
administrative hurdles must
Considerable
consistency
overcome
requirement
the
competent authorities. The cumulative effects of these
requirements constitute a significant barrier to market
entry which prevents the short-term entry of other
service providers in the waste-management sector.

connection with

exemption by

and the

system’s

the

in

(78) Given that

the

services

in question are

a new
phenomenon, the nature and the means of pursuing the
necessary business activity differ significantly from the
services traditionally supplied in the waste-management
sector, e.g. in the area of industrial and large-scale waste
management or that of traditional household refuse and
waste collection. The core services involved are thus less
the technical and operational execution of collection,
sorting and/or recovery functions and more the targeted
combination
of
organisation
taken as whole, make it
coordinated services which,
possible
take-back
to offer
obligation in respect of
sales packaging to those
undertakings which participate in the system.

exemption from the

variety

and

of

a

(75) On the supply side too, the requirements linked to the
supply of a service which exempts manufacturers and
distributors from their obligations to take back and

(79)

There is
supply.

therefore no short-term substitutability of

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Official Journal of the European Communities

21.6.2001

Conclusions

volume of the market segment belonging to the two
markets currently corresponds to approximately 20 % of
the
final
consumers.

consumption of packaging

by private

from their

(80) Against this background, the relevant product market
may be defined as the market for systems which exempt
undertakings
recovery
obligations in respect of sales packaging (hereinafter
referred to as the (cid:145)exemption market(cid:146)). A related market
would be the market for the organisation of compliance
with the take-back and recovery obligations in respect
of used sales packaging (hereinafter referred to as the
(cid:145)self-management market(cid:146)).

take-back

and

(81)

(82)

to

certain

is assumed that

these are two different
it
Even if
markets,
there is an economically significant area of
overlap in the form of a common market segment with
regard
packaging/collection-point
combinations, where a self-management solution and
participation in an exemption system are (partially or
fully)
interchangeable. Primarily at issue here is such
sales packaging as is collected from the private final
consumer for which it seems possible to meet
the
solely on the basis of a self-management
quotas
solution. This might be packaging for which an
appropriate return incentive is created by charging a
deposit
for mineral
water). The quota might also be met in respect of sales
packaging which is supplied at the place where the final
consumer is situated so that collection might also occur
there (e.g. the delivery of large quantities of copy and
printing paper in cardboard boxes). The main packaging
involved here is that which is delivered to recipients
which are equivalent to a private final consumer (e.g.
restaurants, hotels, canteens, administrations, barracks,
hospitals, etc.).

(e.g. one-way packaging material

it

for

activity in the market

This overlap on the edge of the market is of particular
importance given that a self-management solution in
this area serves as a springboard or point of entry to
subsequent
exemption
systems, in which the barriers to entry are much higher.
Realistically,
should be possible to acquire the
know-how and goodwill necessary to operate in that
market solely on the basis of previously having operated
in this neighbouring market. This overlap on the edge
of the market is thus of twofold significance from a
it
competition point of view. On the one hand,
represents what
the only market-based
counterbalance safeguarding the marginal and residual
competition in the area of exemption systems and, on
the other,
for
possible subsequent activity in that market and thereby
fulfils an important function regarding the emergence of
potential competition in that market. At present, various
relatively small undertakings are seeking to establish
themselves on the edge of the market on the basis of
the
self-management

it constitutes a springboard market

is estimated that

is at present

solutions.

It

(83)

Should it not seem possible to meet the stipulated quota
only through collection at the place where packaging is
actually supplied, a combination of a self-management
solution and participation in an exemption system is
conceivable, whereby an obligated undertaking might
want to take part in an exemption system in respect of
the difference between the quota and the proportion of
packaging which can be obtained at
the place of
delivery in the context of a self-management solution.
Although, in this case, the demand-related supply is not
completely or sufficiently interchangeable in view of the
overall relevant requirements of undertakings,
it is so
for certain sub-quantities of sales packaging.

(84)

In its
reply to the Statement of Objections, DSD
expresses the view that the Commission’s assumption
that an activity as operator of an exemption system
normally presupposes a previous activity as provider of
a self-management solution and is greatly facilitated by
such an activity is not borne out by any evidence and is
justified in the absence of such evidence. The
not
requirements placed on self-management solutions and
exemption systems are, in its opinion, too dissimilar.

(85) DSD also expresses

the view in its

reply to the
Statement of Objections that it cannot be assumed that
in the case of self-management solutions the fulfilment
of quotas must in all probability fail as far as the bulk
of sales packaging is concerned inasmuch as in the
context of such solutions only collection in the vicinity
of a shop counts towards the quotas provided for in the
Packaging Ordinance. A complete fulfilment of quotas
is,
it believes, altogether possible in the case of
numerous sales packaging materials through the use of
suitable incentives to return them (e.g. a deposit).

(86) However, no final decision need be taken here on which
of
the two conceivable market definitions should be
applied. As shown below (recitals 95, 96 and 97), DSD
occupies a dominant position whichever definition is
deemed correct. Whichever way the market is defined,
there is an abuse of a dominant position (see recitals 98
et
the Commission’s observations
concerning the fulfilment of the quotas on the basis of
springboard
self-management

seq.). Moreover,

solutions

their

and

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Official Journal of the European Communities

L 166/13

function are not essential
to demonstrating abuse.
Consequently, it is not necessary to answer the above
mentioned objections put forward by DSD.

substantial part of the common market for the purposes
of Article 82 of the EC Treaty.

1.1.2. Relevant geographic market

1.2. Economic strength

(87)

(88)

The relevant geographic market comprises the area in
which the undertakings concerned are involved in the
supply of products or services, in which the conditions
of competition are sufficiently homogeneous and which
can be distinguished from neighbouring areas because
the conditions of competition are appreciably different
in those areas.

The objective supply and demand conditions on the
relevant markets covered by the DSD system continue
to exhibit considerable variations between Member
States. This is due not least to the fact that this is a
sector which used to be, and in some areas still is, to a
large extent regulated and organised by the State.

(89) Although the waste-management sector is becoming
increasingly internationalised,
the case that
supply and demand continue to be organised at national
and
as
level,
waste-management services for used sales packaging.

particular

take-back

regards

is still

in

it

(90)

true not only of

This is essentially because the laws and regulations
governing the disposal of packaging,
including their
implementing rules, differ widely from one country to
statutory
is
another. This
and
governing
requirements
exemption systems and the collection,
sorting and
recovery quotas to be met, but also of the commercial
freedom of action which private undertakings enjoy, e.g.
regarding the take-back and disposal of sales packaging
under their own responsibility. One result of this is that
the take-back and exemption system operated by DSD is
restricted to Germany.

the
take-back

extensive

(91)

Consequently,
the objective
it must be assumed that
supply and demand conditions on the relevant market
in this case differ on a continuing basis from those in
other parts of the common market. Therefore, when
applying the Community’s competition rules to the
product markets covered by the DSD system,
the
relevant geographic market is that of Germany.

(93) According to the case-law of the Court of Justice, a
dominant position within the meaning of Article 82 of
the EC Treaty exists where an undertaking’s position of
economic
effective
competition being maintained on the relevant market by
the fact that it is able, to a considerable extent, to act
independently of its competitors, of its customers and,
ultimately, of consumers (9).

strength enables

to prevent

it

(94) An important indication of the existence of a dominant
position is a particularly large market share. The Court
of Justice took the view in Akzo that, under normal
circumstances, a market share of 50 % is enough for it
to be concluded that there is a dominant position (10).
In Hilti, the Court of First Instance held that (cid:145)in this case
it is established that Hilti holds a share of between 70 %
and 80 % in the relevant market. Such a share is,
in
itself, a clear indication of the existence of a dominant
position in the relevant market(cid:146) (11).

(95) DSD is the only undertaking to offer an exemption
system in Germany. Assuming a market definition based
on the exemption market being a market in its own
right, DSD would thus have a market share of 100 %. It
is estimated that some 70 % of all sales packaging in
Germany and some 82 % of sales packaging collected
from final consumers in Germany is covered by the
DSD system. The sales packaging which is not covered
by the DSD system is either disposed of by obligated
undertakings
third-party
involvement or does not, for other reasons, form part of
the demand for a waste-management service, so that
DSD can be assumed to have an even higher market
share. Even if a broad market definition which includes
the
sales packaging
collected from private final consumers is applied, DSD
accordingly has a market
least 82 %.
Moreover, DSD’s market share has remained extremely
stable since 1995,
the year in which the full quota
requirements had to be met (see recital 28). This fact

self-management market

share of at

themselves

without

for

(92)

The broadest definable market
should therefore be
deemed to be the market for the organisation of the
take-back and recovery from private final consumers of
used sales packaging in Germany. Germany constitutes a

(9) Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, at

paragraph 41.

(10) Case C-62/86 Akzo v Commission [1991] ECR I-3439,

at

paragraph 60.

(11) Case T-30/89, Hilti v Commission [1991] ECR II-1439, at
paragraph 92 (upheld on appeal by the Court of Justice in Case
C-53/92-P [1994] ECR I-667).

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also leads to the conclusion that DSD has a market
position which is highly secure.

2.1. Nature of the abuse

factors also contribute

(96) Over and above DSD’s particularly large market share,
other
to the undertaking’s
economic strength. As stated in recital 79, given the
existence of considerable barriers to market entry, there
is no short-term substitutability of supply. Other service
providers are able to offer a competing exemption
system only at great expense. In addition, it realistically
has to be assumed given these barriers that potential
competing exemption systems will
initially emerge in
one Land or in a few L(cid:228)nder, with the result that DSD
will remain the sole system to operate nationwide for
the foreseeable future. At present, competition only
exists at
the market where there is an
overlap with self-management solutions. The strength
and market position of suppliers active in that area are
not comparable to those of DSD. Given DSD’s position
on the market, any potential competition, in particular
the guarantee of unlimited market access by other
suppliers and the safeguarding of
the hitherto weak
marginal and residual competition, takes on a particular
significance.

the edge of

(97)

Consequently,
dominant position on the market.

it may be concluded that DSD has a

2. ABUSE OF A DOMINANT POSITION

(98)

The Court of Justice has held that a finding that an
undertaking has a dominant position is not in itself a
recrimination but simply means that, irrespective of the
reasons for which it has such a dominant position, the
undertaking concerned has a special responsibility not
to allow its conduct
to impair genuine undistorted
competition in the common market (12).

the very presence of

(99) Abuse of a dominant position relates to the behaviour
of an undertaking in a dominant position which is such
as to influence the structure of a market where, as a
result of
the undertaking in
question, the degree of competition is weakened and
from
through recourse to methods different
which,
those which condition normal competition in products
or
transactions of
commercial operators, has the effect of hindering the
maintenance of the degree of competition still existing
in the market or the growth of that competition (13).

services on the basis of

the

(12) Case 322/81 Michelin v Commission [1983] ECR 3461, at

paragraph 57.
(13) See footnote 9.

(100) The Trade Mark Agreement, as notified by DSD,
provides in Articles 4(1) and 5(1) that the other party
must pay DSD a fee in respect of all of the packaging
distributed by it in the territory of the Federal Republic
of Germany bearing the Green Dot mark. Any
exceptions to this requirement require separate written
agreement
(see recital 40). DSD thus links the fee
payable under the Agreement, not to use of the service
exempting the other party from its
take-back and
recovery obligations under Article 2 of the Agreement,
but solely to the use of the Green Dot mark on sales
packaging. Moreover, DSD requires the other party to
affix the mark to all registered packaging for domestic
lies within DSD’s
consumption (see recital 39).
It
from this
discretion to release
the other party
obligation,
there being no limits placed on such
discretion under the Agreement.

(101) Abuse always occurs where an obligated undertaking
avails itself of DSD’s exemption service only in respect
of some of its sales packaging or dispenses entirely with
in particular
DSD’s exemption service in Germany,
where it decides:

(a)

to have some of the sales packaging of a product in
Germany disposed of using a self-management
solution or a competing exemption system; or

(b) to have all of the sales packaging of a product in
Germany disposed of using a self-management
solution or a competing exemption system, while
participating in a system which uses the Green Dot
mark in other Member States (14).

(102) Where all of a product’s sales packaging distributed in
the territory of the Federal Republic of Germany bears
the Green Dot mark, obligated undertakings
are
required under the first sentence of Article 4(1) and the
first sentence of Article 5(1) of the Agreement to pay a
fee for the entire quantity of packaging, even if they
make no use of the service conferring exemption from
to
the take-back and recovery obligation pursuant
Article 2 of the Agreement or if they use it for only
some of their packaging. For any packaging disposed of

(14) This Decision merely comments on those cases in which all of the
uniformly designed sales packaging put
into circulation is
accessible to the DSD system. Cases in which only some of the
uniformly designed packaging is collected by DSD or in which
some of the packaging is, for legal reasons, not accessible to the
DSD system (see recitals 55, 56 and 57) are not dealt with in this
Decision.

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rival

using a
system, undertakings must pay an
additional fee. The financial burden on undertakings is
thus much heavier than it would be if they used only
the DSD system. Financially speaking, it is therefore of
little interest
to have competitors
dispose of some of their sales packaging.

to undertakings

(103) A solution which might initially seem possible in this
context, i.e. not to mark with the Green Dot mark that
to be covered by the DSD
packaging which is not
system in Germany, would,
inconsiderable
number of cases, be economically unrealistic.

in a not

packaging in the course of distribution and sale. In such
cases, it would not be possible to mark sales packaging
with or without
the Green Dot mark depending on
where it is to end up.

(107) Finally, it is also likely that the final consumer will often
not decide until after buying the packaged product and
sometimes after consuming the product whether to
dispose of the packaging close to his/her home or to
bring it back to the place where he/she bought it. It is
therefore impossible to determine correctly whether
sub-quantities should be marked with the Green Dot
mark or not.

(104)

It would first require manufacturers to mark a given
packaging range differently. Some of
that packaging
would receive the Green Dot mark and some not. This
would lead in particular to considerable additional costs
where the manufacturer wished to use one form of
packaging
common
German-language packaging for Germany and Austria
or common multilingual packaging for Europe. The
advantages of
standardised packaging accruing to
distributors as a result of the common market would
then no longer be fully within reach.

countries,

several

e.g.

for

different

(105) The problem likewise arises where uniformly designed
packaging is to be distributed via different channels (e.g.
self-service department stores and local supermarkets)
for waste
and
management
in each case. Even relatively simple
solutions to this problem, if at all practicable, such as
separate affixing of the Green Dot mark would demand
greater organisational input and constitute a cost factor
for manufacturers and distributors.

arrangements

are made

(108) Where not

just one competitor but

rather
several
alternative waste-management
solutions are used in
addition to DSD, the effect of the above problem is
exacerbated still further (i.e. there is a need to employ
various packaging and distribution channels and to
check where packaging ends up, and thus additional
required). The benefit of
organisational
involving alternative suppliers is thus further reduced.

input

is

Interim finding

(109) The linking of the fee payable under the Trade Mark
Agreement to the quantity of sales packaging market
with the Green Dot mark compels those obligated
undertakings which wish to use competitors of DSD at
least for some of their sales packaging to separate their
packaging
some
undertakings, this would be impracticable and for others
would seem to be not only a disproportionate measure
in the context of the take-back exemption being sought
but also inconsistent with the requirements of a
performance-oriented distribution sector in the common
market.

distribution

channels.

and

For

to be

and logistic

(106) A further crucial factor is the fact that manufacturers
and distributors would have to have sufficient control as
to ensure that packaging market with the Green Dot
mark only ends up at outlets serviced by a system using
the mark and that packaging not marked with the
Green Dot mark only ends up at outlets serviced by a
input
competitor. The organisational
is
associated with the various distribution channels
a
in particular where
likely
manufacturer or distributor uses both DSD and
competing suppliers in Germany at the same time. It is
likely that it will often be outside the organisational and
coordinating power of a manufacturer or distributor to
control the actual route taken by specifically marked
packaging right up to the final point of sale. This will
probably always be the case where a manufacturer
(e.g.
makes use of
the
intermediaries
independent
wholesale trade) and thus no longer has
sufficient
influence and control over the actual route taken by

considerable,

2.2. Effect of the abuse

(110) The effects of this abuse mechanism are described in the

following.

2.2.1. Exploitative abuse

(111) Where an undertaking uses the Green Dot mark but
does not make use of DSD’s exemption service, DSD
imposes unreasonable prices and commercial terms. An

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is

the price

charged for a service

infringement of Article 82(2)(a) of the EC Treaty exists
clearly
where
disproportionate to the cost of supplying it. The main
cost factor for DSD is the operation of an extensive
system for the collection, sorting and recycling of sales
packaging in accordance with Article 2 of the Trade
Mark Agreement. However, DSD incurs only minimal
costs by authorising sales packaging to be marked with
the Green Dot mark without it being demonstrated that
its services have actually been made use of, and no
additional costs in the event of its being entrusted with
a partial quantity. This is indeed clear from the Trade
Mark Agreement, under which licence fees serve solely
to cover the costs incurred in collecting, sorting and
recovering
associated
administrative costs (see recital 42). Therefore, the costs
incurred by DSD as a result of the use of the mark can,
if anything at all, only be part of the administrative
costs. The term (cid:145)licence fee(cid:146)
is accordingly misleading
inasmuch as, even according to the wording chosen by
DSD, the fee is intended to reflect first and foremost the
costs of the exemption service. Although DSD makes
payment of the licence fee contractually dependent on
the use of the mark, the costs which arise for DSD are
based on the extent to which the other party actually
makes use of the exemption service. Consequently, DSD
can be deemed to impose unreasonable prices whenever
the quantity of packaging bearing the Green Dot mark
is greater than the quantity of packaging making use of
the exemption service.

packaging

sales

and

the

contractually.
In so doing it can prevent obligated
undertakings at any time from making known, as
required by the Packaging Ordinance, their participation
in a system by another mark or by (cid:145)other suitable
means(cid:146) (see recital 16). Through the combination of a
contractual obligation to use the mark, on the one
hand, and a linking of the fee to use of the mark, on
the other, separate packaging and distribution channels
are an inevitability.

(113) As long as DSD makes the licence fee dependent solely
on the use of the mark, it is imposing unfair prices and
commercial terms on undertakings which do not use
the exemption service or which use it for only some of
their sales packaging.

2.2.2. Obstructive abuse

terms.

(112) Unfair commercial terms exist where an undertaking in
a dominant position fails to comply with the principle
of proportionality (15). By giving undertakings a choice
between introducing separate packaging and distribution
channels or paying an unreasonable licence fee, DSD is
imposing unfair commercial
In balancing the
various interests in this case, DSD does not appear to
have any reasonable interest in linking the fee payable
by its contractual partners not to the exemption service
actually used but to the extent to which the mark is
used (recitals 136 et seq.). Although DSD does envisage
the possibility of agreeing to exceptions (see recital 40),
it has formulated the contract in such a way that it is
able to decide without
reference to predetermined
criteria whether the link between the fee payable under
the contract and the use of the mark should be severed.
In certain cases, DSD refuses to agree to a contractual
exception even though there is no correlation between
the use of the exemption services and the use of the
mark. DSD obliges the other party, moreover, to use the
mark and makes exceptions at its own discretion. In the
case of partial quantity solutions, DSD is thereby also
imposing separate packaging and distribution channels

(114) An undertaking in a dominant position can obstruct its
competitors by binding its customers de jure or de facto
to its services and thereby prevent them from using
competing suppliers (16). The Court has stated on this
matter that (cid:145)a system of undistorted competition, as laid
down in the Treaty, can be guaranteed only if equality
of opportunity is
secured as between the various
economic operators(cid:146) (17). Such equality of opportunity is
particularly important
for new market entrants on a
market on which competition is already weakened by
the presence of a dominant undertaking and other
circumstances (18).
competitors
In particular,
should not be the victims of behaviour by a dominant
firm, facilitated by that firm’s market power, which is
designed to exclude those competitors from the market
or which has such an exclusionary effect (19).

small

(16) See footnote 9.
(17) Case C-202/88 France v Commission [1991] ECR I-1271, at

paragraph 51.

(18) Commission Decision 95/489/EC of 4.10.1995 in GSM-Italia

(OJ L 280, 23.11.1995, p. 49, at paragraph 15).

(15) Case 27/76 United Brands v Commission [1978] ECR 207, at

(19) Commission Decision 98/531/EC of 11.3.1998 in Van den Bergh

paragraph 190.

Foods Limited (OJ L 246, 4.9.1998, p. 1, at paragraph 262).

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(115) The terms governing the fee in the Trade Mark
Agreement lead in the cases described below to its being
of no interest to undertakings subject to the take-back
and recovery obligation to take part in a competing
exemption system or a competing self-management
solution because either a licence fee must be paid to
DSD in addition to the remuneration made to the
competitor or
separate packaging and distribution
channels would be necessary. In their actual effect, these
terms are very close to being an exclusivity requirement.
for
They
competitors
strengthen DSD’s
dominant position and further weaken competition.
There
for
equality
competitors.

it much more difficult
the market,

thereby make
to enter

opportunity

thus

no

of

is

Interim finding

(116) These terms thus represent an abuse of a dominant
position. Against the background of hitherto very weak
marginal and residual competition, and given that the
only counterbalance to the dominant undertaking which
is effective in the short term takes the form of smaller
competing suppliers on the edge of the market, this
conduct constitutes a particularly severe case of abuse.

2.3. Specific examples of abuse on the basis of groups

of cases

(117) The abusive effect of

the fee terms is described in

greater detail on the basis of specific groups of cases.

Group I (cid:151) Restriction of competition between DSD and
other exemption systems (where membership of DSD is
complementary)

(118) Where a new contractor,

initially or on a permanent
basis, establishes a system under Section 6(3) of the
Packaging Ordinance solely on a regional basis,
i.e.
the whole of
least one Land, but not
covering at
Germany, obligated undertakings are able to join a
competing system only if they either identify separately
the sales packaging which they have put into circulation
or pay fees to two systems.

to fulfil these take-back obligations, they will, even if
for a competing supplier
they would like to opt
regionally, be dependent on membership of another
system,
for
those services not covered by that contractor.

i.e. at the present time the DSD system,

(120) Membership of an exemption system operating on only
interest to
a regional basis would be of no financial
obligated undertakings because of the fee terms in the
Trade Mark Agreement. In practice this would compel
them to go on using DSD for the entire amount of sales
packaging and it would be impossible for a competing
system to enter the market.

(121) Against the background of the considerable barriers to
market entry for exemption systems, a system which
initially operates only regionally seems
far more
economically realistic than the establishment of an
exemption system competing nationally from the start
(see recitals 75 to 79). One form is actually trying this
at present.

(122) With regard to this group of cases DSD has submitted
the commitment
in recital 51: DSD has
set out
undertaken to agree to derogations under the second
sentence of Article 4(2) of the Trade Mark Agreement in
the commitment
the said group of cases. However,
contains the reservation that protection of the Green
Dot trade mark must not be impaired. This fundamental
reservation casts considerable doubt on the intended
the commitment. DSD thereby retains the
effect of
possibility, by pointing to an alleged impairment of the
trade mark protection, which is not further specified,
vis-(cid:224)-vis contractual partners, to refuse to translate the
commitment into action. The Commission has therefore
expressed the opinion that this reservation should be
deleted. DSD has refused to do this on the ground that
it considered the commitment it had already given to be
sufficient and saw no reason to go any further.

(123) Consequently, the commitment submitted by DSD on
the

insufficient

to allay

is

this group of
cases
Commission’s concerns.

Group II (cid:151) Restriction of competition between DSD and
self-management solutions (where membership of DSD is
complementary)

(119) Since the majority of obligated undertakings distribute
their packaging on a supraregional or nationwide basis
and require a corresponding exemption or arrangement

(124) The problems already set out with regard to regional
those
exemption systems are similarly echoed for

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21.6.2001

obligated undertakings which,
obligations, use a combination of
solution
exemption system (see recital 83).

complementary

and

in order to fulfil

their
self-management
in an

participation

solution,

separate packaging

(125) Where an exemption system is used to complement a
and
self-management
distribution channels are hardly practicable since, with
regard to any particular form of sales packaging, it is
almost
the obligated undertaking to
determine in advance, and hence possibly also to
identify clearly, which used packaging is to be collected
from the final consumer, possibly at the place where it
was handed over, and which should be left
to an
exemption system.

impossible for

sales packaging is out of
therefore

(126) Because of the effect, already explained, of the fee terms,
solution for
the organisation of a self-management
the
partial amounts of
question. Obligated undertakings
in
practice compelled to continue to use DSD for the
entire amount of sales packaging, making market access
for alternative self-management solutions considerably
more difficult. Their corrective competitive function,
extremely important
is under the existing
though it
market conditions, cannot develop in the area of
residual and marginal competition with a view to
combined solutions.

are

(127)

to

separate

introduce

packaging

In this connection DSD has submitted the commitment
set out in recital 61. According to this commitment use
of the trade mark is restricted to sales packaging taking
part in the DSD system. Obligated undertakings are thus
compelled
and
distribution channels. The commitment therefore does
not eliminate the abusive effect of
the fee terms.
Furthermore, DSD has included a reference to the ninth
sentence of Section 6(1) of the Packaging Ordinance.
The combined solutions which define Group II are,
however, not based solely on the ninth sentence of
the Packaging Ordinance, which
Section 6(1) of
contains
additional proportional
membership of an exemption system if the quota is not
met (see recital 21). Instead it is conceivable that a firm
may
a
self-management solution in respect of only a certain
partial amount of packaging and to belong to the DSD
system for the remainder.

the obligation of

from the

practise

decide

outset

to

(128) The commitment submitted by DSD on this group of
the
not

sufficient

cases
Commission’s competition concerns.

therefore

allay

to

is

Group III (cid:151) Restriction of competition between DSD and
other exemption systems or self-management solutions (with
no membership of DSD)

(129) On the basis of

the problems already described, a
comparable situation can arise in those cases where a
distributor in another Member State plans to have a
certain type of sales packaging dealt with by a take-back
system which uses the Green Dot trade mark, but in
Germany fulfils his obligations in respect of the same
type of sales packaging without belonging to the DSD
system. This can happen if he participates in one or
more potentially competing exemption systems or one
through a
or more
combination of the two possibilities.

self-management

solutions or

(130)

the distributor has a legal
In this group of cases
obligation to identify the packaging he puts
into
circulation in another Member State with the Green Dot
trade mark, or it is economically advisable for him to
do so. A legal obligation can arise from both the
environmental legislation applicable and the trade mark
agreement concluded with the system operator in each
of the other member countries.

(131) Participation in a competing exemption system or in a
self-management
solution would not be financially
worthwhile because of the fee terms in the Agreement.
This would make market access in particular for a
competing exemption service operating nationwide or
for a nationwide self-management solution considerably
more difficult. In this group of cases, too, the fee terms
therefore result in exploitative and obstructive abuse.
economic
This group of cases
importance not
the
single market, many of the consumer goods which are
relevant here are increasingly being distributed in more
than just one member country and, as stated in recital
45, take-back and exemption systems which use the
Green Dot trade mark and are comparable to the DSD
system have in the meantime established themselves in
several Community Member States.

is of considerable

in the context of

least because,

(132) The Commission has received a complaint on this group
of cases
from L’OrØal and other manufacturers of
hair-care products and the waste disposal contractor
Vfw, who wish
a
self-management
and
recovery of packaging for the hair-care products used
by hairdressers (see recital 6).

in Germany
take-back

organise
for

to
solution

the

(133) As regards this group of cases DSD has,

in order to
eliminate the abuse, submitted the commitment set out
in recital 63: DSD will not charge a licence fee if it can
be proved that
the Packaging Ordinance obligations
have been fulfilled in another way, provided that the
packaging carries
it does not
participate
in the DSD system. According to a
declaration made by DSD (see recital 64), sufficient

an indication that

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Official Journal of the European Communities

L 166/19

in the

expert’s

case of

constituted,

proof would be
a
self-management solution, by the presentation of an
independent
the
take-back and recovery requirements have been fulfilled
in the case of participation in an exemption
and,
confirmation of
system, by the
participation.

system operator’s

certificate

stating

that

(134) DSD has supplemented this by stating that

the

previous

it was
important for the proof that (cid:145)it should show clearly the
extent to which the packaging, despite being marked
with the Green Dot trade mark, is not included in the
system operated by DSD AG(cid:146). Taking into account
DSD’s
Commission
declarations,
understands this to mean that the proof should in no
case go beyond the Packaging Ordinance requirements.
The supplementary statement can therefore not be
interpreted as meaning that DSD will check the expert’s
certificate presented or will require proof, objectively
impossible as this is, that none of the packaging has
actually been collected and recovered by the DSD
system.
the commitment
submitted by DSD, proof can extend only to a finding
that, for all packaging marked with the Green Dot trade
mark, the Packaging Ordinance obligations have been
fulfilled in another way. This
finding is, however,
sufficiently verifiable by DSD where the proof states the
overall volume of packaging to which the quota
In the Commission’s view the wish
fulfilment relates.
expressed by DSD in the supplementary statement is
therefore satisfied if the proof contains an indication of
the overall volume of packaging.

Instead, on the basis of

(135) Provided DSD carries out

this commitment having
regard to the declaration it made to the Commission, an
abuse of a dominant position can no longer be seen to
exist in this group of cases on the basis of the existing
facts.

2.4. No objective justification

Incompatibility with the Packaging Ordinance

(136) DSD takes the view that the use of the Green Dot trade
mark for partial quantities of packaging for which no
exemption service is provided is incompatible with the
Packaging Ordinance. According to the communication
from Germany, the purpose of the obligation to identify
packaging was, first, to document the fact that there
was no obligation for the packaging to be returned to
the vicinity of
to provide
information that this packaging was to be included in
the collection route laid down by the system. The
purpose of the trade mark was to fulfil this obligation.
the
This was
that
consumer did not have
to return this
packaging in the vicinity of the shop. Contrary to the
Commission’s view, the consumer had no freedom to
decide. In so far as Germany, in its communication to
the Commission, had confirmed that the final consumer

the shop and, secondly,

connected with the

statement

right

the

the

right

was free to decide whether he left the packaging in the
shop or returned it to the shop or took it to a collection
point near his home, the content of this confirmation
was misleading. The trade mark indication that
the
consumer did not have
to return this
packaging in the vicinity of the shop did not correspond
to the facts if partial quantities not included in the DSD
system carried the trade mark, since there was an
absolute obligation to take such packaging back to the
vicinity of the shop. The consumer was being misled
the envisaged collection route. According to
about
Germany’s communication,
transparency had to be
established for consumers and authorities as to which
packaging was subject to the take-back obligation and
which was not. The fulfilment of
this transparency
requirement had to be unreservedly guaranteed, because
in practice consumers had the possibility of getting rid
of used sales packaging by a route other than the
particular one provided for.

requires

in
taking part
(137) The Packaging Ordinance
to be identified. However,
the
exemption systems
reverse conclusion,
that non-participating packaging
should not be identified, cannot be inferred from this. In
reply to the Commission’s question on this point,
Germany has stated that the Packaging Ordinance does
not impose a fine in cases where packaging is identified
by means of a system trade mark but does not
participate in the system. Such conduct is therefore not
punishable (see recital 16).

relates

collected by a

self-management

(138) DSD’s argument is based on the assumption that the
final consumer cannot choose whether
to take the
packaging to a collection point in the vicinity of the
shop or of his home. The assumption conflicts with
Germany’s communication (see recital 20 and footnote
8). Nor is there any convincing justification for the
content of the assumption. Group II, which is relevant
here,
to a situation in which packaging is
solution.
partially
Manufacturers and distributors are obliged to provide a
take-back facility in the vicinity of
the shop for
self-manageable packaging.
If partial quantities of a
product’s packaging are self-manageable in a shop and
partial quantities of the same product’s packaging are
covered by the DSD system (e.g. cardboard packaging
left
taken away by the
customer;
food/drink consumed on the snack bar
premises or taken away), the two solutions, i.e. return of
packaging in the vicinity of the shop or collection from
the vicinity of the home, exist side by side. The final
consumer is then free to use the take-back facility near
the shop for packaging carrying the Green Dot trade
mark as well. Firstly, under the Packaging Ordinance the
distributor’s
all
packaging of similar goods or of goods of the same
brand (see recital 12). This holds true irrespective of
whether the packaging participates in an exemption
system or is marked. Secondly, the Packaging Ordinance

in the furniture store or

obligation

take-back

extends

to

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Official Journal of the European Communities

21.6.2001

nowhere contains obligations for the final consumer.
The return of packaging in the vicinity of the shop is
therefore in the case of partial quantity solutions not
just a practical possibility, which is conceded by DSD,
but also a legal option for action. There are therefore no
the Commission’s
grounds
interpretation of Germany’s communication is not valid
in Group II cases as defined by the Commission.

for maintaining

that

(139) Because of the final consumer’s freedom of choice the
transparency requirement is met if it is made clear that
both collection options exist. This is the case if the
packaging carries the trade mark (may be covered by
DSD) and collection containers are installed in the
vicinity of the shop and attention is drawn to them
(may be left in the shop). The final consumer has the
choice and exercises it, so he cannot be misled.

(140) DSD takes

that

view, moreover,

the packaging in question. Because of

general
the
identification with the Green Dot
trade mark would
infringe the Packaging Ordinance also where partial
quantities of packaging are covered not by the DSD
system but by a competing exemption system. In this
case the identification would have the function of
providing information on which of the systems was to
collect
the
identification requirement at least the partial quantities
included in the competing exemption system would
(also) have to carry such identification. These partial
quantities would then bear two identifying marks. This
would give the consumer the impression that he was
free to decide to convey the packaging to either of the
two
the
collection.
Commission’s assumption, the consumer was not free to
decide this. The fact that consumers could in practice
also use the DSD system to dispose of the packaging it
did not cover, made no difference.

Contrary

systems

for

to

Dot trade mark in the case of either partial participation
in a self-management solution or partial participation in
another exemption system. DSD’s abusive conduct
is
accordingly not prescribed by the Packaging Ordinance.
The Commission Decision does not compel DSD to
breach the Packaging Ordinance rules.

Considerations under trade-mark law

(143) DSD further states that the trade mark necessarily loses
its identifying power where it is carried on packaging
which is not exempted from the take-back obligation or
is to be collected by a competing system. The more
packaging carries the trade mark without belonging to
the system, the greater the loss of identifying power.
This could lead to the trade mark’s identifying power
becoming weakened to such an extent
large
sections of
the public no longer understood it as
indicating exemption from the take-back obligation and
the possibility that it could be collected by the DSD
system.
the DSD
It could threaten the collapse of
system, because consumers would not convey enough
used sales packaging into the system.

that

exercise of

an exclusive

the Court of

(144) Here it must be commented that, according to the
Justice and Court of First
case-law of
Instance,
right may be
prohibited by Article 82 of the EC Treaty if it gives rise
to certain abusive
an
undertaking occupying a dominant position (20). The
crucial point is whether the conduct goes beyond what
the
function of
is necessary to fulfil
exclusive right as permitted in Community law (21).

conduct on the part of

the essential

(141) The wording of

the Packaging Ordinance gives no
indication as to whether partial quantities of packaging
which participate in a competing exemption system
may not be identified by the Green Dot trade mark. The
transparency mentioned by Germany (see recital 13)
requires only that the consumer recognises whether the
packaging may be taken back in the vicinity of the shop
(i.e. at least partial participation in a self-management
solution) or not (i.e. exclusive participation in one or
more exemption systems). This does not imply that it
would have to be apparent to the final consumer which
specific system was to take care of the collection.
It
should also be added that here too the final consumer is
able to choose the system by which he has
the
packaging collected, since the exemption system must
collect all the sales packaging that is fed into it and the
Packaging Ordinance obligations are not addressed to
the consumer.

(142) Public law precepts do not therefore require the partial
abandonment of identification by means of the Green

(145) The Green Dot trade mark was registered under the
pre-1 January 1995 Trade-Mark Law as an association
trade mark within the meaning of Article 17 of that
law. According to a judgment by the Berlin Higher
Regional Court, the content of the trade mark gives no
indication as to the quality of the collection service, but
for the market in question says no more than that the
product thus identified may be collected via the dual
system (22). The consumer, as the market addressed,
therefore infers from the trade mark that he can convey
the packaging for collection by the DSD system. But the
Green Dot trade mark does not imply that collection by
means of the DSD system constitutes the only collection
In Groups I and II, a partial quantity of
possibility.
contractually tied to one of DSD’s
packaging is
the packaging is
competitors and the remainder of

(20) Case 53/87 CICRA and another v Renault [1988] ECR 6039, at
paragraph 16; Case 238/87 Volvo v Veng [1988] ECR 6211, at
paragraph 9; Case T-70/89 BBC v Commission [1991] ECR II-535,
at paragraph 59; Case T-198/98 Micro Leader v Commission [1999]
ECR II-3989.

(21) See footnote 20 (BBC v Commission), at paragraph 61.
(22) Berlin Higher Regional Court,

judgment of 14 June 1994, BB

1994, 2299.

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Official Journal of the European Communities

L 166/21

(e.g.

factors

covered by the DSD system. Ultimately, the consumer
can, however, decide whether to convey any particular
item of packaging for recycling by the competitor of the
DSD system. The consumer’s decision is influenced by a
number of
acquired disposal habits,
attitudes, type of packaging, product use, accessibility of
the point of sale, take-back incentives). The essential
function of
trade mark is therefore
fulfilled when it signals to the consumer that he has the
option of having the packaging collected by DSD.
Accordingly the Green Dot trade mark’s function does
not require that, where participation in the DSD system
is only partial, only a partial quantity of the packaging
should carry the trade mark.

the Green Dot

(146) Furthermore, a partial

identification of the packaging
makes no sense in particular if a given system of
distribution and sales does not allow for the channelling
of waste on the basis of the place where it accumulates,
or if the consumer decides on the form of collection
identification would
only after
the trade mark’s
neither improve the protection of
function
of
identification
the
clear
participation in the system. It is also clear that, where a
partial quantity of packaging is covered by the DSD
system, the content of the Green Dot trade mark can be
understood only as indicating a collection option.

the purchase. Partial

nor make

far

(147) DSD also states that the danger of trade-mark misuse
exists. Where only partial quantities of sales packaging
were covered by the DSD system and at the same time
the remainder also carried the trade mark, it was to be
than the partial
larger quantities
expected that
quantities for which manufacturers or distributors had
contracted would be channelled into the DSD system.
While DSD could ask to be reimbursed for the costs of
handling the additional quantities, this would not be
of
sufficient,
self-management solutions were not as reliable as in the
DSD system and the claim could be made only after one
year’s delay. DSD would therefore have to finance the
costs in advance and bear a considerable risk of loss.

controls

since

case

the

the

in

strict

least as

(148) Against this it may be argued that competing exemption
systems and, under the new version of the Packaging
Ordinance, self-management solutions as well, have to
meet
identical recycling quotas. Under the Packaging
Ordinance checks on whether quotas have been met are
self-management
in the case of
at
solutions as in the case of exemption systems (see recital
19). Besides this, the ninth sentence of Section 6(1) of
the Packaging Ordinance
self-management
firms which do not meet the quotas to complement
them by joining an exemption system. The delay in the
event of compensation is reasonable. The allocation of
packaging amounts can only be established after the
year in question has elapsed. It must be assumed that
DSD’s competitors and DSD itself offer their services
with a view to meeting the prescribed quotas. Obligated

compels

undertakings participate in the DSD system only in
respect of a partial quantity and must therefore pay a
fee only for that quantity. If any other solution were
adopted, manufacturers and distributors would have to
pay
intended, DSD’s
competitors actually meet their quotas.

advance whenever,

as

in

(149) DSD also states

that,

even bearing in mind the
difficulties which may exist
for manufacturers and
distributors if the use of the trade mark were restricted
to partial quantities of sales packaging,
there is no
justification for requiring DSD to grant isolated rights to
use the trade mark and hence to provide services as yet
not offered by DSD, especially since these difficulties are
not caused by DSD but are the result of manufacturers’
and
The
difficulties mentioned in the Statement of Objections of
limiting use of the trade mark to the partial quantities
of sales packaging covered by the DSD system are
therefore not decisive as far as the legal assessment of
DSD’s conduct is concerned.

organisation

distributors’

activity.

and

(150) The inference of abuse shows that the difficulties stem
It
from the fee terms in the Trade Mark Agreement.
only with
would not
for manufacturers
disproportionate extra expenditure,
and
and
the
change
distribution process in such a way as to eliminate the
difficulties.

be possible,

or possible

distributors

packaging

to

(151) Lastly, DSD maintains that

the balanced relationship
between licence fee income and the costs of meeting
collectors’ claims would be disturbed.

(152) Again it must be pointed out that in the said groups
DSD does not provide an exemption service or provides
it only for partial amounts. Accordingly the parties to
the service agreements also have to provide a reduced
service for DSD. For this case DSD has agreed in the
service agreements concluded with collection firms to a
reduction in the fee payable by DSD to the collectors by
deduction of the (cid:145)self-management amount(cid:146) (defined as
(cid:145)per
quantities which in
accordance with Section 6(1) and (3) of the Packaging
Ordinance have to be collected and recovered outside
the dual system(cid:146)). The extent of the collectors’ activity
does not depend on whether or not packaging carries
the Green Dot trade mark.

consumption of

capita

(153) The arguments put forward by DSD are therefore not
capable of providing an objective justification for the
licence fee terms and hence of ruling out the abuse of a
dominant market position.

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21.6.2001

Result

The functioning and efficiency of the common market is
affected to an appreciable extent.

(154) DSD is therefore abusing its dominant position within
the meaning of Article 82 of the EC Treaty as regards
both its customers and its competitors.

3. EFFECT ON TRADE BETWEEN MEMBER STATES

(155) The abuse of a dominant position as a result of the
licence fee terms in the Trade Mark Agreement is likely
to have an appreciable effect on trade between Member
States.

(156) The abuse of a dominant position may affect

trade
between Member States if it is sufficiently likely, given
the objective legal and factual circumstances,
it
directly or indirectly, actually or potentially, influences
trade in goods between Member States in a way which
suggests that in so doing it prevents the achievement of
a single market between them.

that

(157) First, it should in principle be pointed out that many of
DSD’s present licensees come from other Community
Member States. Restrictions or barriers to alternatives
for the take-back and recovery of sales packaging for
these distributors
in Germany therefore appreciably
affect international trade in the context of the existing
market conditions.

(158)

(159)

(160)

to establish exemption systems

It
is also conceivable for firms from other Member
States to offer self-management solutions or exemption
systems in Germany. An attempt could in particular be
in a Land
made
to implement
bordering on a Member State or
self-management solutions in areas near the border.
Abuse of the fee terms in the Trade Mark Agreement
also makes market access considerably more difficult for
these contractors from other Member States.

It should also be borne in mind that manufacturers who
also export their products to other Member States are
under not inconsiderable pressure from the fee terms in
the Trade Mark Agreement to take part in the system
that uses the Green Dot trade mark in both Germany
and these Member States. Lastly, manufacturers can
achieve their goal of a product distributed throughout
Europe in the same packaging only if they take part
throughout Europe in the exemption systems which use
the Green Dot trade mark.

forms of packaging,
arbitrarily
is

In so far as the manufacturer belongs to different
systems in each of the Member States and accepts the
the relevant
need for different
product market
The
manufacturer has to ensure that the envisaged channels
of distribution are adhered to. This makes cross-border
trade in the product more difficult. In particular, parallel
imports are possible only if the packaging is changed.
This is an artificial alteration of market conditions. It
prevents
from becoming
economically intertwined, as intended by the EC Treaty.

the Member

segmented.

States

II. ARTICLE 3(1) OF REGULATION NO 17

(161) Article 3(1) of Regulation No 17 states that where the
Commission finds that there is infringement of Article
it may require the undertakings
82 of the EC Treaty,
concerned to bring such infringement to an end.

(162) The Commission is therefore justified in requiring DSD
to bring the present infringements to an end and to take
the necessary measures to prevent
them from being
continued or repeated.

(163) The infringements consist in the fact that, under the
first sentence of Article 4(1) and the first sentence of
Article 5(1) of the Trade Mark Agreement, DSD requires
the payment of a licence fee for the total quantity of
trade mark
sales packaging carrying the Green Dot
which is put into circulation in Germany even when the
exemption service referred to in Article 2 of
the
Agreement is used only for partial quantities or not at
all. Although the second sentence of Article 4(1) of the
Trade Mark Agreement allows derogations, DSD has
refused to submit commitments for Groups I and II
which would have put an end to the abusive situation
and would have been implemented as derogations under
the Agreement.

(164) For Group III, DSD has submitted a commitment to the
Commission and has made an explanatory declaration.
the commitment having
Provided DSD carries out
regard to the declaration in accordance with the
considerations in recitals 133 and 134, an infringement
can no longer be seen to exist.

(165)

In order to prevent the infringements established from
being continued or
repeated, DSD must undertake
vis-(cid:224)-vis all parties to the Trade Mark Agreement not to
charge any licence fee for those partial quantities of
trade mark
sales packaging carrying the Green Dot
which are put into circulation in Germany for which
the exemption service referred to in Article 2 of the
Trade Mark Agreement is not used. This commitment
replaces a derogation under the second sentence of
Article 4(1) of the Agreement.

(166) Furthermore,

suitable form,

to the final consumer on the packaging,

the commitment submitted by DSD in
respect of Group III must be made binding. According
to this commitment DSD may require that it be made
clear
in
proximity to the Green Dot trade mark,
in words or
other
the packaging does not
participate in the system set up by DSD under Section
6(3). Inasmuch as findings of suitability and clarity, in
particular, are based on value judgments, it cannot be
ruled out
there may be differences of opinion
between DSD and obligated undertakings as to the form
the message should take. In order to make sure that the

that

that

21.6.2001

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Official Journal of the European Communities

L 166/23

commitment is carried out, a procedure must be laid
down by which such differences of opinion can be
settled quickly to the satisfaction of both sides. A
decision by an expert appointed by the Commission
fulfils this need.

undertaking, it must be ensured that other provisions of
the Trade Mark Agreement are not applied in such a
way as to require a higher level of proof to be provided
to DSD,

(167) Both for Groups

the

and

recovery

constitute

requirements

is partial or

is partial or

confirmation that

I and II and pursuant

to the
commitment submitted in respect of Group III, DSD
may require its contractual partners to provide proof
that, in respect of quantities of sales packaging put into
circulation in Germany and carrying the Green Dot
trade mark for which the exemption service referred to
in Article 2 of the Trade Mark Agreement is not used,
the Packaging Ordinance obligations have been fulfilled
in another way. It cannot be ruled out that there may
be differences of opinion between DSD and obligated
undertakings as to the form the requisite proof should
take. For clarity’s sake the criteria which the proof must
satisfy must therefore be defined in this Decision. In so
doing the Commission will be guided by the purpose of
the obligation to provide proof. DSD ought to be able
to ascertain that it is renouncing payment of a fee only
for packaging with which obligated undertakings take
the
in a competing exemption system or fulfil
part
collection
a
via
self-management solution,
it being in these cases that
there is the risk of a double payment obligation (see
complete
there
recital 115). Where
participation in a competing exemption system,
the
system operator’s
relevant
quantity of packaging is covered by the competing
system will
sufficient proof. Obligated
undertakings will be exempted from their obligations in
respect of the participating quantity of packaging only
through participation in an exemption system. Where
there
complete participation in a
self-management solution, the subsequent presentation
of an independent expert’s certificate, which may be
issued either individually to the individual manufacturer
or distributor or to an association of self-managers,
stating that the take-back and recovery requirements for
the corresponding amount of packaging have been
fulfilled will be sufficient. DSD may not require the
certificate to be presented at an earlier time than is laid
down under the Packaging Ordinance.
Irrespective of
the version of the Packaging Ordinance in question, the
the certificate confirms to the contractual
fact
partner that the take-back and recovery requirements,
related to a specific quantity of packaging, have been
fulfilled will suffice for the proof to be provided to DSD.
Should the certificate contain other information (such as
the name of the undertaking acting as the appointed
third party, collection points or precise quotas),
this
must be obliterated to prevent DSD from obtaining
sensitive
competitors. Both the
system operator’s confirmation and the independent
expert’s certificate may be replaced by an accountant’s
certificate confirming retrospectively the fulfilment of
the Packaging Ordinance obligations in respect of a
accountant’s
specific
packaging.
the
certificate will provide proof of
Packaging Ordinance obligations without
revealing
whether this was done through a competing exemption
system or through a self-management solution. In order
to prevent the above requirements regarding proof from
being circumvented to the detriment of the obligated

The
fulfilment of

information about

volume

that

of

HAS ADOPTED THIS DECISION:

Article 1

(cid:145)DSD(cid:146)),

conduct of Der Gr(cid:252)ne Punkt (cid:151) Duales System
The
Deutschland AG, Cologne (hereinafter:
in requiring,
under the first sentence of Article 4(1) and the first sentence of
Article 5(1) of
the Trade Mark Agreement, payment of a
licence fee for the total quantity of sales packaging carrying
the Green Dot trade mark and put into circulation in Germany
even where
is
undertakings subject
the
Packaging Ordinance:

common market
to the obligations arising out of

incompatible with the

(a) either use DSD’s exemption service as referred to in Article
2 of the Trade Mark Agreement only for partial quantities
or, instead of using the said service, put into circulation in
Germany uniformly designed packaging which is also in
circulation in another member country of the European
Economic Area and participates in a take-back system
using the Green Dot trade mark, and

(b) prove that, in respect of the quantity or partial quantity for
which they do not use the exemption service, they fulfil
their obligations under the Packaging Ordinance through
competing exemption systems or through self-management
solutions.

Article 2

DSD shall bring the infringement referred to in Article 1 to an
end immediately.

DSD shall refrain from continuing or repeating the conduct
described in Article 1 or from taking measures having the
same effect.

DSD shall further fulfil the terms set out in Articles 3 to 7.

Article 3

DSD shall undertake vis-(cid:224)-vis all parties to the Trade Mark
to charge any licence fee for such partial
Agreement not
quantities of sales packaging carrying the Green Dot
trade
mark as are put into circulation in Germany for which the
exemption service referred to in Article 2 of the Trade Mark
Agreement is not used and for which the Packaging Ordinance
obligations have demonstrably been fulfilled in another way.

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Official Journal of the European Communities

21.6.2001

The commitment
replace a
derogation under the second sentence of Article 4(1) of the
Trade Mark Agreement.

in the first paragraph shall

Article 4

1.
In the case of packaging which is collected and recovered
in another Member State under a system using the Green Dot
trade mark and which is put into circulation using the trade
mark in the territory covered by the Packaging Ordinance,
DSD shall not charge a licence fee if the requirements of the
Packaging Ordinance have demonstrably been met otherwise
than through participation in the system set up by DSD under
Section 6(3) of the Ordinance.

2.
DSD may require, as a precondition for the waiver of the
licence fee, that it be made clear to the final consumer on the
packaging referred to in paragraph 1,
in words or other
suitable form placed close to the Green Dot trade mark, that
the packaging does not participate in the dual system set up
by DSD under Section 6(3) of the Ordinance.

3.
In the event of disagreement over the recognisability of
the notice, the parties shall within one week of either or both
sides
such disagreement has arisen, ask the
Commission to appoint an expert.

finding that

The expert shall be charged with determining within four
weeks whether, having regard to the packaging’s basic
function, the possible forms of the notice discussed by the
parties fulfil the requirements set out in paragraph 2.

the

that

fact
partner

Irrespective of the version of the Packaging Ordinance in
4.
to the
question,
contractual
recovery
the
requirements, related to a specific quantity of packaging, have
been fulfilled shall suffice for the proof to be furnished to
DSD.

confirms
and

certificate

take-back

that

the

Should the certificate contain other information,

5.
shall be obliterated.

this

expert’s

Both the

system operator’s

confirmation and the
6.
replaced by an
independent
accountant’s
the
fulfilment of the Packaging Ordinance obligations in respect of
a specific volume of packaging.

certificate may be
confirming

retrospectively

certificate

7.
Other provisions of the Trade Mark Agreement shall not
be applied in such a way as to require a higher level of proof
to be furnished to DSD.

Article 6

1.
this
DSD shall, as from the date of notification of
Decision, enter into the commitments set out in Articles 3, 4
and 5 vis-(cid:224)-vis all parties to the Trade Mark Agreement and
shall bring this to the attention of the said parties within two
months of the notification of this Decision.

The provisions of the Trade Mark Agreement may not be
they delay the immediate

2.
applied in such a way that
performance of the obligation set out in paragraph 1.

The expert’s costs shall be borne by the parties equally.

Article 7

Article 5

exemption

1. Where there is partial or complete participation in a
system operator’s
system,
competing
confirmation that the relevant quantity of packaging is covered
by the competing system shall constitute sufficient proof that
the Packaging Ordinance obligations under Articles 3 and 4
have been fulfilled in another way.

the

2. Where there is partial or complete participation in a
self-management solution, the subsequent presentation of an
independent expert’s certificate stating that the take-back and
recovery requirements for the relevant amount of packaging
have been fulfilled shall be sufficient. The certificate may be
issued either to the individual manufacturer or distributor or
to an association of self-managers.

3.
DSD may on no account require the certificate to be
presented at an earlier time than is laid down under the
Packaging Ordinance.

DSD shall
notification of
this Decision, of
commitments under Articles 3 to 6.

inform the Commission, within three months of
the

fulfilment of

the

Article 8

This Decision is addressed to:

Der Gr(cid:252)ne Punkt (cid:151) Duales System Deutschland AG
Frankfurter Stra(cid:223)e 720(cid:150)726
D-51145 Cologne

Done at Brussels, 20 April 2001

For the Commission

Mario MONTI

Member of the Commission