Case T-142/03: Action brought on 28 April 2003 by Fost Plus VZW against the Commission of the European Communities
Date: 2003-06-21
Institutions: Court of First Instance
Subjects: Belgium, action for annulment (EU), environmental protection, packaging, waste disposal, waste management, waste recycling

C 146/44

EN

Official Journal of the European Union

21.6.2003

‘Code of Good Administrative Behaviour’, specifically the
section on ‘Consistency’ under the heading of ‘General
Principles of Good Administration’. The illegality of the
consultation also gives rise, in the applicant’s view, to the
illegality of the partial refusal of access, which is specifi-
cally based on the reply by which the Italian authorities
refused disclosure;

— the applicant further alleges discriminatory treatment vis-
à-vis a separate request (made by another individual) for
access to documents coming within the same category as
those to which the applicant is seeking access;

— the applicant also submits that, in particular by treating
as adequate the ostensible reasoning of the senior official
who signed the documents, who refers to a measure of a
national court applying national
legislation which is
generally recognised as being less transparent than the
provisions of Regulation (EC) No 1049/2001, the Com-
mission committed a manifest error of assessment and
breached at the same time Article 4(5) of Regulation (EC)
No 1049/2001, the principle of sound administration
and the obligation to ensure that decisions taken by the
institutions are adequately reasoned;

— finally, the applicant submits that there has been a breach
of its rights of defence in so far as access to the documents
in question is the only avenue open to it to assess the
legality of the decision authorising a State aid scheme.

Action brought on 28 April 2003 by Fost Plus VZW
against the Commission of the European Communities

(Case T-142/03)

(2003/C 146/79)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 April 2003 by Fost Plus VZW,
having its registered office in Brussels, represented by Peter
Wytinck, Jan Bouckaert and Hendrik Viane, advocaten.

The applicant claims that the Court should:

1. Annul Article 1 of the Decision;

2. Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision
2003/82/EC of 29 January 2003 (1). The contested decision
authorises Belgium to impose within its territory higher
recycling and recovery targets than those laid down in Directive
94/62/EC (2).

The applicant is a non-profit-making association which is the
only organisation recognised in Belgium for the purpose of
collecting, recycling and valorising domestic packaging waste.
It assumes responsibility for accepting domestic packaging
waste from those who are affiliated to it. Members of the
applicant represent the producers and importers of packaging,
packaged products or packaging materials, distribution com-
panies and trade federations.

The applicant first of all alleges that there has been a breach of
Article 253 EC and of Article 6(6) of Directive 94/62/EC. The
applicant claims that the Commission, when adopting the
contested decision, based itself on inaccurate or incomplete
facts. By so doing, it argues, the Commission committed errors
of fact in its assessment of the criteria set out in Article 6(6) of
Directive 94/62/EC.

The applicant also claims that there has been a breach of
Article 253 EC. The Commission has, in its view, failed to set
out sufficient reasons as to why Belgium has, within its
territory, adequate recycling capacity for metal packaging,
non-ferrous metals, and the mechanical recycling of plastics,
paper and cardboard. The applicant further contends that the
Commission fails in its decision to examine the effect which
an increase in the minimum recycling targets may have for
each type of packaging material.

The applicant concludes by submitting that there has been an
infringement of the general duty of care and a breach of
Directive 94/62/EC inasmuch as the Commission assumed
certain matters, such as incineration with energy recovery and
available capacity, to be factually valid without examining
whether this was possible or in accordance with Directive 94/
62/EC.

(1) Decision 2003/82/EC: Commission Decision of 29 January 2003
confirming measures notified by Belgium pursuant to Article 6(6)
of Directive 94/62/EC of the European Parliament and the Council
on packaging and packaging waste (Text with EEA relevance)
(notified under document number C(2003) 361) (OJ 2003 L 31,
p. 32).

(2) Directive 94/62/EC of the European Parliament and the Council
of 20 December 1994 on packaging and packaging waste (OJ
1994 L 365, p. 10).