Source: EURLEX
Language: en
Format: md

C 289/26 EN Official Journal of the European Communities 13.10.2001

The applicant argues that the retroactive entry into force of _Pleas in law and main arguments_
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 The applicant has since 1991 operated what is at present the
with primary law and the general principles of Community only system covering the whole of Germany for the collection
law. In addition, it maintains that the retrospectively-imposed and recovery of used sales packaging bearing its trade mark
limitation on import duties is not compatible with the principle ‘Der Grüne Punkt’ (‘Green Dot’). In order to collect this
of the protection of legitimate expectations and the prohibition packaging, the applicant has provided 32 million households
on retroactive effect. 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
The applicant maintains that it has suffered considerable and/or distributors to affix the mark to sales packaging
damage as a result of the illegality described above, for which included in the applicant’s exemption system. According to
the European Community, represented by the Council, to the applicant, the mark ‘Der Grüne Punkt’ indicates, for the
which the conduct giving rise to liability is imputable, must commercial sector concerned, the goods of manufacturers and
pay compensation pursuant to Article 235 EC in conjunction distributors which participate in the applicant’s system with
with Article 288(2) EC. 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
( [1] ) Council Regulation (EC) No 2744/98 of 14 December 1998 featuring that mark — but that packaging alone — in the
amending Regulation (EC) No 355/94 and extending the tempor- applicant’s collection containers.
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 The applicant notified the Commission in 1992 of its statutes,
Denmark and to Ireland relating to the rules governing travellers’ together with a sample copy of the agreements underlying the
allowances on imports (OJ 1991 L 94, p. 24). 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.

**Action brought on 5 July 2001 by Der Grüne Punkt —** In the contested decision the Commission ruled that the
**Duales System Deutschland AG against the Commission** applicant had, through the agreements governing use of the
**of the European Communities** 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
**(Case T-151/01)**
intended for disposal by a competitor, and to that extent to
waive payment of licence fees.
(2001/C 289/63)

_(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 Communities was brought before the Court of First Instance of the
European Communities on 5 July 2001 by Der Grüne Punkt
The applicant first submits that it has not abused any dominant
— Duales System Deutschland AG, Cologne, represented by
market position which it may hold. According to the case-law
Wolfgang Deselaers, Bernd Meyring, Eckart Wagner and
of the Court of Justice, a refusal by the holder of a copyright
Clemens Weidemann, with an address for service in Luxemor design or model patent to grant a licence does not in
bourg.
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
The applicant claims that the Court should:
competing systems and intended for disposal by way of those
systems is therefore not, in its view, abusive. The applicant

—
Annul the defendant’s decision of 20 April 2001 argues that the contested decision would result in compulsory
(K(2001) 1106-DE) relating to a proceeding pursuant to licences for no fees. Any such obligation to grant licences is in
Article 82 EC (Case COMP D3/34493-DSD); principle impermissible, since it would have the effect of
reducing a commercial property right to an economic right to
— Order the defendant to pay the costs of the proceedings. remuneration.

13.10.2001 EN Official Journal of the European Communities C 289/27

The applicant contends that the decision means that in future kamp, residing in Overijse (Belgium), represented by Eric
almost all sales packaging in Germany will bear its mark, with Boigelot, avocat, with an address for service in Luxembourg.
the result that, together with its disposal partners, the applicant
will bear the costs of the disposal of packaging for which it
will receive no licence fee. Indiscriminate designation of almost The applicant claims that the Court should:
all packaging in Germany with the mark ‘Der Grüne Punkt’
would, it argues, destroy both the indication-of-origin function —
annul the decision of the appointing authority of 13 Sepand the appeal function of that mark and thereby jeopardise
tember 2000 filling at Grade A 1 the post of Deputy
the efficacy of the applicant’s system. At almost the same time
Director General responsible for coordination of Directorit would lead to a total dilution of the mark, and the recognised
ates C, D and E of the Directorate-General for Agriculture
signal effect of the mark would be destroyed in a very short
(COM/094/00);
time. The applicant submits that the total dilution of the mark
would imperil the authorisation of its system and claims

—
protection against revocation of that authorisation. set aside the appointment of another person to the post
of Deputy Director General responsible for coordination
of Directorates C, D and E of the Directorate-General for
Agriculture (COM/094/00), which involved in particular
The applicant argues that there is no infringement of Article 82
the rejection of the application which the applicant had
inasmuch as the conditions for the legal exemption under
submitted for the vacant post;
Article 86(2) EC are satisfied. The applicant submits that it is
entrusted with the operation of a service of general economic —
annul the implied decision rejecting the applicant’s cominterest and that accordingly the rules governing competition,
plaint;
including those of Article 82 EC, apply to it only in so far as
their application does not obstruct the performance, under

—
commercially acceptable conditions, of the particular tasks in any event, order the defendant to pay the costs,
assigned to it. By destroying, in particular, the signal effect of together with the expenses and fees of counsel consulted
the mark ‘Der Grüne Punkt’, the decision has the effect of by the applicant for the purpose of bringing the present
endangering in such a way the functional efficacy of the action.
applicant’s system.

The applicant concludes by arguing that there has been a _Pleas in law and main arguments_
breach of Article 3 of Regulation No 17, contending inter alia
that an obligation such as that laid down in Articles 3 and 4
of the contested decision to grant a temporally unlimited The applicant claims that the Commission took account of the
compulsory licence to use the mark ‘Der Grüne Punkt’ without nationality of applicants in making the appointment to the
payment of a licence fee is disproportionate and at variance post of Deputy Director General, thereby infringing Articles 7,
with the case-law of the Court of Justice. 25, 27, 29 and 45(1) of the Staff Regulations.

**Action brought on 17 July 2001 by Léon Rappe against**
**the Commission of the European Communities**
**Action brought on 12 July 2001 by Alexandre Tilgenkamp**
**against the Commission of the European Communities**
**(Case T-160/01)**

**(Case T-158/01)**
(2001/C 289/65)

(2001/C 289/64)
_(Language of the case: French)_

_(Language of the case: French)_
An action against the Commission of the European Communities was brought before the Court of First Instance of the
European Communities on 17 July 2001 by Léon Rappe,
An action against the Commission of the European Communi- residing in Orp-Jauche, Belgium, represented by Jean-Noël
ties was brought before the Court of First Instance of the Louis and Véronique Peere, Lawyers, with an address for
European Communities on 12 July 2001 by Alexandre Tilgen- service in Luxembourg.