Case T-424/03: Action brought on 22 December 2003 by European New Car Assessment Programme ("Euro NCAP") against the Commission of the European Communities
Date: 2004-03-06
Institutions: Court of First Instance
Subjects: EU aid, European Commission, action for annulment (EU), association, transport safety

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.

C 59/28

EN

Official Journal of the European Union

6.3.2004

The applicant claims that the Court should:

— Direct the defendant to honour the settlement agreement
reached with the applicant and to pay it a total final sum
in respect of the Grant Agreement of EUR 40 919,65.

— Annul the Commission’s Decision of 20 October 2003
to pay only EUR 257 598,91, despite the existence of the
settlement agreement.

— In the alternative to the first and second pleas above,
should the Court find that no settlement agreement exists,
to order the defendant to pay the applicant the final
amount specified in its Final Report, less amounts already
paid, totalling EUR 47 706,39.

— In the further alternative to the first and second pleas
above, should the Court find that no settlement agreement
exists, annul the Commission’s Decision of 20 October
2003 to pay only EUR 257 598,91 despite the applicant’s
for
contractual
EUR 305 305,30.

claim in

Report

Final

the

approval of this sum, which the applicant duly did. On
20 October 2003, however, the Commission proceeded to
pay to the applicant the sum of EUR 257 598,91 which, as it
claimed in subsequent correspondence, represented the final
amount due under the agreement.

In support of its application the applicant first submits that a
binding settlement agreement was reached in May 2003
between the parties, providing that the amount payable would
be EUR 298 518,65. It therefore asks the Court to enforce that
agreement. In the alternative, if the Court should conclude that
no settlement agreement was reached, the applicant claims
that the Commission was bound to pay the original amount
claimed, i.e. EUR 305 305,30, since it failed to express its
concerns within sixty days of receipt of the application of
payment. The applicant further argues that, in any case, the
Commission’s
only
EUR 257 598,91 should be annulled for failure to state reasons
and for non-respect of the applicant’s right to be heard by the
Commission before the final decision was adopted.

applicant

decision

pay

the

to

— Order the defendant to pay interest on any amounts that
the Court finds remain due or have been paid late in
accordance with the pleas above.

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

Action brought on 21 December 2003 by Gregorio
Valero Jordana against the Commission of the European
Communities

Pleas in law and main arguments

The Applicant is an international nonprofit making association
active in the field of new car safety. On 22 August 2001, the
applicant submitted to the Commission an application for a
grant of 25 % funding of a project concerned with the safety
assessment of certain types of vehicles, most notably four
wheel drive vehicles. Thereafter, on 12 October 2001 the
applicant and the Commission concluded a Grant Agreement
the terms of which provided that the applicant would present
to the Commission a final statement of all eligible costs, that
on the basis of an examination of the final settlement the
Commission would pay the balance of the grant to the
applicant and that all sums under the agreement were to be
paid within sixty days unless the Commission, within that
period,
the request was not
admissible . On 10 December 2002 the applicant submitted
an application for payment of the outstanding balance, of the
grant, which it claimed was EUR 305 305,30. On 31 March
2003, i.e. more than sixty days after receipt of the application,
the Commission, not having paid the sum requested, raised
certain queries with the applicant. These led to further
submissions of documents by the applicant and a meeting
between the parties representatives. On 2 May 2003 the
Commission informed the applicant that final payment would
be EUR 298 518,65 and asked the applicant to mark its

informed the applicant

that

(Case T-429/03)

(2004/C 59/45)

(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 21 December 2003 by Gregorio
Valero Jordana, residing in Uccle (Belgium), represented by
Nicolas Lhoëst, lawyer, with an address for service in Luxem-
bourg.

The applicant claims that the Court should:

— Annul the decision of the appointing authority dated
19 December 2003 confirming the applicant’s initial
classification in Grade A 7;

— In so far as necessary, annul the decision of the appointing
authority of 9 September 2003 rejecting the applicant’s
complaint;

— Order the defendant to pay all the costs of the proceed-

ings.