Case T-289/01: Action brought on 27 November 2001 by Der Grüne Punkt — Duales System Deutschland Aktiengesellschaft against the Commission of the European Communities
Date: 2002-02-16
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, contract, packaging product, waste recycling

C 44/18

EN

Official Journal of the European Communities

16.2.2002

— order any other measure which the Court may deem
appropriate requiring the Commission to fulfil its obli-
gations under Article 233 EC and, more specifically,
requiring the Commission to reexamine the situation;

— in the alternative, declare the decision in question void in

its entirety;

— order the Commission of the European Communities to

graph 72 of the decision;

pay all the costs.

— annul the applicant’s commitment as set out in para-

Pleas in law and main arguments

The applicant, a Spanish organisation of producers of frozen
tunny which has previously challenged before the Court of
First Instance a number of Commission regulations providing
for compensatory allowances granted to producer organis-
ations for the tuna supplied to the Community processing
industry in the quarters between 1 July 1999 and 30 September
2000 (2), challenges in the present case the regulation relating
to the period between 1 October and 31 December 2000.

The pleas in law and main arguments are similar to those
advanced in Case T-142/01 (3).

(1) OJ 2001 L 224, p. 4.
(2) Case T-142/01.
(3) OJ C 245, p. 28.

Action brought on 27 November 2001 by Der Grüne
Punkt — Duales System Deutschland Aktiengesellschaft
against the Commission of the European Communities

(Case T-289/01)

(2002/C 44/35)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 November 2001 by Der Grüne
Punkt — Duales System Deutschland Aktiengesellschaft, Co-
logne (Germany), represented by W. Deselaers, B. Meyring and
E. Wagner, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare Article 3(a) and (b) of

the
defendant of 17 September 2001 (C(2001) 2672 final)
relating to a proceeding under Article 81 of the EC Treaty
and Article 53 of the EEA Agreement void;

the Decision of

— order the defendant to pay the costs.

Pleas in law and main arguments

Since 1991 the applicant has operated what is currently the
only system covering the whole of Germany for the collection
and recovery of used sales packaging bearing its trade mark
‘Der Grüne Punkt’
(‘Green Dot’). The applicant organises
regular collections of packaging from nearly all private house-
holds in Germany. The applicant grants domestic and foreign
manufacturers and/or distributors the right to mark sales
packaging covered by the applicant’s exemption system under
the terms of a uniform agreement on use of the mark.

In September 1992 the applicant notified the Commission of
its statutes and a sample of the agreements underlying the
system. In January 1996, at the request of the defendant, the
applicant gave the commitment on joint use set out
in
paragraph 71 of the contested decision and subject to various
restrictions. In March 1997 the Commission announced its
intention to take a favourable view of all the agreements
notified pursuant to Article 19(3) of Regulation No 17 (1).

By decision of 20 April 2001 the Commission required the
applicant also to allow the use of the ‘Green Dot’ mark for
packaging which is not part of the applicant’s system but part
of that of a competitor and is intended for disposal by that
competitor. The applicant brought an action against that
decision before the Court of First Instance (2).

In June 2001 the defendant informed the applicant that it
intended to attach conditions to the the decision on exemption.
According to the applicant those conditions go far beyond the
commitment given by the applicant. On 17 September 2001
the defendant finally issued the contested decision on exemp-
tion subject to two such conditions.

The applicant seeks the annulment of Article 3(a) and (b) of
that decision and submits that the conditions imposed in it
prejudice its legal position as it is forced to accept the use of
its collection and sorting facilities by competitors.

16.2.2002

EN

Official Journal of the European Communities

C 44/19

the decision,

The applicant argues that, by imposing the condition in
Article 3(a) of
the defendant has applied
Article 81(3) EC incorrectly inter alia in that the condition is
not objectively necessary as the use of the collection and
sorting facilities is in no way indispensable for the activities of
competitors. Moreover,
the condition, which is dispro-
portionate, entails an encroachment on the specific subject
matter of the applicant’s trade mark and distortion of compe-
tition to the detriment of the applicant.

The applicant argues, further, that, by imposing the condition
in Article 3(a), the defendant has applied Article 86(2) EC
incorrectly, since the applicant, which is entrusted with a
service of general interest, can no longer operate its country-
wide system under economically viable conditions and make
the necessary adjustments between profitable and less profit-
able sectors.

Moreover, by imposing the condition in Article 3(b) the
defendant has applied Article 86(2) EC incorrectly. Finally, the
defendant, by seeking the commitment of 25 September 1998
(recital 72), has breached the fundamental right to freedom of
access to justice.

(1) OJ C 100, p. 4.
(2) Case T-151/01 Der Grüne Punkt — Duales System Deutschland

AG v Commission OJ 2001 C 289, p. 6.

Pleas in law and main arguments

The applicant is challenging a demand for repayment of
Community grants totalling EUR 464 329,22 made by the
Commission in the contested debit note.

The applicant and the Community concluded, within the
framework of the LIFE project (1), a contract relating to the
planned ‘Ecological revitalisation of
the Brandenburgische
Elbtalaue’: preparatory planning and Gnevsdorfer Werder sub-
project’. The Commission undertook to participate by making
a contribution of 50 % of the actual cost, but not exceeding
ECU 1,5 million. The project thus promoted, which was
designed to prepare the reinstatement of the embankment
between the municipalities of Lenzen and Wustrow, was
finished in 1998. Shortly before the end of the project, it
became apparent that it would not be possible to reinstate the
embankment as extensively as had been planned.

In February 2001 the Commission gave notice that, in its view,
the applicant, in carrying out the project, had partly deviated
from the contract and that, since the applicant had reduced
the surface area of the project, the Commission was only able
to co-finance the work done in the reduced area. By the
contested decision, the Commission called upon the applicant
to repay to it EUR 464 329,33.

Action brought on 28 November 2001 by the Land
Brandenburg against the Commission of the European
Communities

(Case T-290/01)

(2002/C 44/36)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 November 2001 by the Land
Brandenburg (Germany), represented by G. Schohe and T. Mas-
ing, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision contained in the Commission’s debit
note No 3240305411 of 13.9.2001 addressed to the
applicant,
LIFE94/D/
to
A211/00029/BND re Contract No B4-3200/94/730;

relating

project

No

— order the defendant to pay the costs.

it

instead,

The applicant asserts that the Community is not entitled to
demand the repayment at issue by means of a Commission
decision;
is obliged to have recourse to law
before the national courts. In addition, it maintains that the
Commission has failed to comply with its obligation to provide
a statement of reasons and has violated the applicant’s rights
of defence. Finally, the Commission has infringed the principle
of proportionality.

(1) Council Regulation (EEC) No 1973/92 of 21 May 1992 estab-
lishing a financial instrument for the environment (LIFE) (OJ 1992
L 206, p. 1), as amended by Regulation (EC) No 1404/96 of
15.7.1996 (OJ 1996 L 181, p. 1).

Action brought on 30 November 2001 by Dessauer
Versorgungs- und Verkehrsgesellschaft mbH — DVV —
Stadtwerke and four other undertakings against the
Commission of the European Communities

(Case T-291/01)

(2002/C 44/37)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 November 2001 by Dessauer