Case T-419/03: Action brought on 22 December 2003 by ARGEV Verpackungsverwertungs-Gesellschaft mbH and Altstoff Recycling Austria Aktiengesellschaft against the Commission of the European Communities
Date: 2003-12-22
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, inter-company agreement, packaging, waste recycling

6.3.2004

EN

Official Journal of the European Union

C 59/27

Action brought on 22 December 2003 by ARGEV Ver-
packungsverwertungs-Gesellschaft mbH and Altstoff
Recycling Austria Aktiengesellschaft against the Com-
mission of the European Communities

ments would fulfil the requirements of the block exemption
regulation. The imposition of conditions which exceed the
provisions of the block exemption is impermissible.

(Case T-419/03)

(2004/C 59/43)

(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 22 December 2003 by ARGEV
Verpackungsverwertungs-Gesellschaft mbH and Altstoff
Recycling Austria Aktiengesellschaft, Vienna (Austria), rep-
resented by Dr Hanno Wollmann, lawyer.

The applicant claims that the Court should

— annul Article 2 and Article 3 of the Commission Decision
of 16 October 2003 in a proceeding under Article 81 EC
and Article 53 of the EEA Agreement (Case COMP D3/
35.470 — ARA, COMP D3/35.743 — ARGEV, ARO);

— in the alternative, annul Article 3 of that decision;

— order the defendant to pay the costs.

Pleas in law and main arguments

In 1994 the applicants notified several agreements and request-
ed negative clearance or,
in the alternative, an exemption
decision. By the contested decision, the Commission approved,
subject to conditions, the bundle of contracts of ARA, the
countrywide Austrian system for the collection and recycling
of packaging waste.

The applicants object to Articles 2 and 3 of the decision
and claim that the restriction of competition found by the
Commission does not exist. The Commission bases Article 2
of the decision on the fact that ARGEV has given exclusive
contracts in the relevant collecting region to those disposal
undertakings with which it has concluded collection and
sorting agreements (‘services contracts’). That is incorrect. The
services contracts do not contain either a commitment to
exclusivity which binds ARGEV or on which it can rely. For
that reason, the Commission ought to have given the services
contracts the negative clearance primarily applied for instead
of an exemption.

Moreover, the applicants claim that the services contract
satisfies the requirements of the block exemption in Regulation
No 2790/1999 (1). Even if the services contracts of ARGEV
contained an obligation of exclusivity (quod non) the agree-

Furthermore, the applicants submit that the conditions pro-
vided for cannot be fulfilled and are unreasonable. Article 3(b)
of the decision requires ARGEV and/or its disposal partner to
have continuing information concerning the total amount of
packaging licensed through systems in the domestic sector.
That information is not, however, available. In addition, market
shares can only be determined retrospectively. The distribution
key laid down by the Commission for the goods collected is
therefore impracticable. Moreover, Article 3(b) would, on the
basis of realistic assumptions, result in ARGEV failing to
achieve the collection and recycling quota laid down by the
authorities. In the worst case, that would lead to the withdrawal
of approval. The condition is therefore unreasonable,
in
particular because there were less severe means of achieving
the objective sought by the Commission. The proposals made
by ARGEV in that regard were left out of account by the
Commission in the decision, without any reasons being given.

Finally, the applicants submit that there is a contradiction
between the operative part and the statement of reasons of the
decision in material respects. The statement of reasons contains
material restrictions of the conditions that are not reproduced
in the operative part of the decision.

(1) Commission Regulation (EC) No 2790/1999 of 22 December
1999 on the application of Article 81(3) of the Treaty to categories
of vertical agreements and concerted practices (OJ 1999 L 336,
p. 21).

Action brought on 22 December 2003 by European New
Car Assessment Programme (‘Euro NCAP’) against the
Commission of the European Communities

(Case T-424/03)

(2004/C 59/44)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 December 2003 by European
New Car Assessment Programme (‘Euro NCAP’), Brussels,
Belguim, represented by Mr S. Kinsella and Mr K. Daly,
Solicitors.