Case T-151/01: Action brought on 5 July 2001 by Der Grüne Punkt — Duales System Deutschland AG against the Commission of the European Communities
Date: 2001-10-13
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), contract, packaging, trade mark, waste recycling

C 289/26

EN

Official Journal of the European Communities

13.10.2001

The applicant argues that the retroactive entry into force of
that regulation, the excessively long derogation which it makes
from the uniform system of exemption from customs duty,
and the unconditional facility which it confers to limit the
maximum amounts that may be imported duty free conflict
with primary law and the general principles of Community
law. In addition, it maintains that the retrospectively-imposed
limitation on import duties is not compatible with the principle
of the protection of legitimate expectations and the prohibition
on retroactive effect.

The applicant maintains that it has suffered considerable
damage as a result of the illegality described above, for which
the European Community, represented by the Council, to
which the conduct giving rise to liability is imputable, must
pay compensation pursuant to Article 235 EC in conjunction
with Article 288(2) EC.

(1) Council Regulation (EC) No 2744/98 of 14 December 1998
amending Regulation (EC) No 355/94 and extending the tempor-
ary derogation applicable to Germany and Austria (OJ 1998
L 345, p. 9).

(2) Council Directive 91/191/EEC of 27 March 1991 amending
Directive 69/169/EEC on tax-paid allowances in intra-Community
travel and as regards a derogation granted to the Kingdom of
Denmark and to Ireland relating to the rules governing travellers’
allowances on imports (OJ 1991 L 94, p. 24).

Action brought on 5 July 2001 by Der Grüne Punkt —
Duales System Deutschland AG against the Commission
of the European Communities

(Case T-151/01)

(2001/C 289/63)

Pleas in law and main arguments

(‘Green Dot’).

The applicant has since 1991 operated what is at present the
only system covering the whole of Germany for the collection
and recovery of used sales packaging bearing its trade mark
In order to collect this
‘Der Grüne Punkt’
packaging, the applicant has provided 32 million households
with collection containers, which also feature that mark.
Pursuant to a uniform agreement governing use of that mark,
the applicant authorises national and foreign manufacturers
and/or distributors to affix the mark to sales packaging
included in the applicant’s exemption system. According to
the applicant, the mark ‘Der Grüne Punkt’ indicates, for the
commercial sector concerned, the goods of manufacturers and
distributors which participate in the applicant’s system with
regard to disposal of actual packaging and which have recourse
to the applicant’s disposal services. The mark also signals to
consumers that they should dispose of packaging actually
featuring that mark — but that packaging alone — in the
applicant’s collection containers.

The applicant notified the Commission in 1992 of its statutes,
together with a sample copy of the agreements underlying the
system and a sample copy of the agreements governing the
use of the mark. The Commission stated in 1997 that it would
give a positive ruling on all agreements notified to it. In
November 1999 a complaint against the applicant was brought
before the Commission.

In the contested decision the Commission ruled that the
applicant had, through the agreements governing use of the
mark, infringed Article 82 EC, and required the applicant to
grant licences for use of the mark ‘Der Grüne Punkt’ also on
packaging not participating in the applicant’s system but
intended for disposal by a competitor, and to that extent to
waive payment of licence fees.

(Language of the Case: German)

In its action, the applicant claims a breach of Article 82 EC,
Article 86(2) EC and Article 3 of Regulation No 17.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 July 2001 by Der Grüne Punkt
— Duales System Deutschland AG, Cologne, represented by
Wolfgang Deselaers, Bernd Meyring, Eckart Wagner and
Clemens Weidemann, with an address for service in Luxem-
bourg.

The applicant claims that the Court should:

— Annul

the defendant’s decision of 20 April 2001
(K(2001) 1106-DE) relating to a proceeding pursuant to
Article 82 EC (Case COMP D3/34493-DSD);

— Order the defendant to pay the costs of the proceedings.

The applicant first submits that it has not abused any dominant
market position which it may hold. According to the case-law
of the Court of Justice, a refusal by the holder of a copyright
or design or model patent to grant a licence does not in
principle constitute abuse within the meaning of Article 82 EC.
The applicant’s refusal to grant separate licences for use of
the mark ‘Der Grüne Punkt’ on packaging participating in
competing systems and intended for disposal by way of those
systems is therefore not, in its view, abusive. The applicant
argues that the contested decision would result in compulsory
licences for no fees. Any such obligation to grant licences is in
principle impermissible, since it would have the effect of
reducing a commercial property right to an economic right to
remuneration.

13.10.2001

EN

Official Journal of the European Communities

C 289/27

The applicant contends that the decision means that in future
almost all sales packaging in Germany will bear its mark, with
the result that, together with its disposal partners, the applicant
will bear the costs of the disposal of packaging for which it
will receive no licence fee. Indiscriminate designation of almost
all packaging in Germany with the mark ‘Der Grüne Punkt’
would, it argues, destroy both the indication-of-origin function
and the appeal function of that mark and thereby jeopardise
the efficacy of the applicant’s system. At almost the same time
it would lead to a total dilution of the mark, and the recognised
signal effect of the mark would be destroyed in a very short
time. The applicant submits that the total dilution of the mark
would imperil the authorisation of its system and claims
protection against revocation of that authorisation.

The applicant argues that there is no infringement of Article 82
inasmuch as the conditions for the legal exemption under
Article 86(2) EC are satisfied. The applicant submits that it is
entrusted with the operation of a service of general economic
interest and that accordingly the rules governing competition,
including those of Article 82 EC, apply to it only in so far as
their application does not obstruct the performance, under
commercially acceptable conditions, of the particular tasks
assigned to it. By destroying, in particular, the signal effect of
the mark ‘Der Grüne Punkt’, the decision has the effect of
endangering in such a way the functional efficacy of the
applicant’s system.

kamp, residing in Overijse (Belgium), represented by Eric
Boigelot, avocat, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision of the appointing authority of 13 Sep-
tember 2000 filling at Grade A 1 the post of Deputy
Director General responsible for coordination of Director-
ates C, D and E of the Directorate-General for Agriculture
(COM/094/00);

— set aside the appointment of another person to the post
of Deputy Director General responsible for coordination
of Directorates C, D and E of the Directorate-General for
Agriculture (COM/094/00), which involved in particular
the rejection of the application which the applicant had
submitted for the vacant post;

— annul the implied decision rejecting the applicant’s com-

plaint;

— in any event, order the defendant to pay the costs,
together with the expenses and fees of counsel consulted
by the applicant for the purpose of bringing the present
action.

The applicant concludes by arguing that there has been a
breach of Article 3 of Regulation No 17, contending inter alia
that an obligation such as that laid down in Articles 3 and 4
of the contested decision to grant a temporally unlimited
compulsory licence to use the mark ‘Der Grüne Punkt’ without
payment of a licence fee is disproportionate and at variance
with the case-law of the Court of Justice.

Pleas in law and main arguments

The applicant claims that the Commission took account of the
nationality of applicants in making the appointment to the
post of Deputy Director General, thereby infringing Articles 7,
25, 27, 29 and 45(1) of the Staff Regulations.

Action brought on 12 July 2001 by Alexandre Tilgenkamp
against the Commission of the European Communities

Action brought on 17 July 2001 by Léon Rappe against
the Commission of the European Communities

(Case T-158/01)

(2001/C 289/64)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 12 July 2001 by Alexandre Tilgen-

(Case T-160/01)

(2001/C 289/65)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 July 2001 by Léon Rappe,
residing in Orp-Jauche, Belgium, represented by Jean-Noël
Louis and Véronique Peere, Lawyers, with an address for
service in Luxembourg.