Case T-146/01: Action brought on 2 July 2001 by D.L.D. Trading Company Import-Export, spol. s.r.o. against the Council of the European Union
Date: 2001-10-13
Institutions: Court of First Instance
Subjects: Council of the European Union, action brought before an administrative court, exemption from customs duties, import, transport company, transport user

13.10.2001

EN

Official Journal of the European Communities

C 289/25

European Communities on 20 June 2001 by Entorn, Sociedat
Limitada Enginyeria i Serveis, whose registered office is in
Barcelona (Spain), represented by Marı´a do Carmo Belard-
Kopke Marques-Pinto.

Action brought on 2 July 2001 by D.L.D. Trading Com-
pany Import-Export, spol. s.r.o. against the Council of the
European Union

The applicant claims that the Court should:

— annul in its entirety Commission Decision C(1999) 534
of 4 March 1999 withdrawing the assistance granted to
Entorn, Sociedat Limitada Enginyeria i Serveis under
Decision C(93) 3394 of 26 November 1993 relating to
the granting of EAGGF — Guidance Section assistance in
accordance with Council Regulation (EEC) No 4256/88
for Project No 93.ES.06.030 entitled ‘Project demonstrat-
ing sumac cultivation using new cultivation techniques’;

(Case T-146/01)

(2001/C 289/62)

(Language of the case: German)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 2 July 2001 by D.L.D. Trading Company
Import-Export, spol. s.r.o., Brno, Czech Republic, represented
by Johannes Hintermayr, Georg Minichmayr and Peter Burg-
staller.

— order the Commission of the European Communities to

pay the costs.

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant claims, first, that the Commission has committed
an error of assessment of the facts in regarding it as the
addressee of the contested decision ordering the repayment of
EUR 725 094.
the Commission
In the applicant’s view,
acknowledged from the start of the project that the beneficiary
of the Community financial contribution was Entorn, Trading
Limited, a company incorporated under Irish law, with which
the applicant, Entorn, Sociedat Limitada Enginyeria i Serveis,
has no economic, legal or financial connection whatsoever. It
was to that organisation that was actually transferred the sum
of EUR 725 094, now being claimed from the applicant who
never received any monies whatever from the Commission.

The applicant submits, secondly, that the contested decision is
vitiated by a breach of essential procedural requirements, since
the formalities necessary for its adoption have not been
complied with. Indeed, the Commission has not provided the
defendant with an opportunity to defend itself prior to the
closure of the administrative procedure, thereby offending
against the fundamental principle of Community law which
provides that, in any proceedings against a person which may
result in a decision adversely affecting it, the right to a fair
hearing must be observed, a principle which applies even
where there does not exist any legislation governing such
procedure.

1.

the Council

order
applicant ATS
to pay
10 000 000 within 14 days and declare the current
version of Article 5(8) of Council Directive 69/169/EEC
concerning travellers’ allowances and Regulation (EC)
No 2744/98 contrary to Community law;

the

2.

order the Council to pay the costs.

Pleas in law and main arguments

The applicant is established in Brno, Czech Republic, and
operates two ‘Duty Free Shops’ in that country. In practice, it
sells goods exclusively to travellers who import them into
Austria in their personal luggage for their personal use.

It argues that Council Regulation (EC) No 2744/98 (1) and/or
Article 5(8) of Directive 69/169/EEC as amended by Council
Directive 91/191/EEC (2) are contrary to primary Community
law and the general principles of the Community and are
illegal.

The Council regulation on exemption from customs duty as
amended by Regulation (EC) No 2744/98 exempts imports of
goods from a non-member country contained in luggage
which are not commercial in character. However, the exemp-
tion applies only up to a certain maximum value. Pursuant to
a derogating provision, the duty-free limit which applied in
Austria until 31 December 1997 was 75 ecus. On 14 Decem-
ber 1998, the Council adopted Regulation (EC) No 2744/98,
whereby the duty-free amount may be limited by national
measures, and made that regulation enter into force retro-
actively on 1 January 1998, extending the derogation from the
uniform system of exemption from customs duty for a period
of eight years overall.

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.