CELEX: 62003TN0419
Language: en
Date: 2003-12-22 00:00:00
Title: 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

6.3.2004               EN                         Official Journal of the European Union                                                 C 59/27
Action brought on 22 December 2003 by ARGEV Ver-                          ments would fulfil the requirements of the block exemption
packungsverwertungs-Gesellschaft mbH and Altstoff                         regulation. The imposition of conditions which exceed the
Recycling Austria Aktiengesellschaft against the Com-                     provisions of the block exemption is impermissible.
            mission of the European Communities
                         (Case T-419/03)                                  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
                          (2004/C 59/43)                                  have continuing information concerning the total amount of
                                                                          packaging licensed through systems in the domestic sector.
                   (Language of the case: German)                         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
An action against the Commission of the European Communi-                 basis of realistic assumptions, result in ARGEV failing to
ties was brought before the Court of First Instance of the                achieve the collection and recycling quota laid down by the
European Communities on 22 December 2003 by ARGEV                         authorities. In the worst case, that would lead to the withdrawal
Verpackungsverwertungs-Gesellschaft mbH and Altstoff                      of approval. The condition is therefore unreasonable, in
Recycling Austria Aktiengesellschaft, Vienna (Austria), rep-              particular because there were less severe means of achieving
resented by Dr Hanno Wollmann, lawyer.                                    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.
The applicant claims that the Court should
—     annul Article 2 and Article 3 of the Commission Decision            Finally, the applicants submit that there is a contradiction
      of 16 October 2003 in a proceeding under Article 81 EC              between the operative part and the statement of reasons of the
      and Article 53 of the EEA Agreement (Case COMP D3/                  decision in material respects. The statement of reasons contains
      35.470 — ARA, COMP D3/35.743 — ARGEV, ARO);                         material restrictions of the conditions that are not reproduced
                                                                          in the operative part of the decision.
—     in the alternative, annul Article 3 of that decision;
—     order the defendant to pay the costs.                               (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).
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.                                                       Action brought on 22 December 2003 by European New
                                                                          Car Assessment Programme (‘Euro NCAP’) against the
                                                                                   Commission of the European Communities
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                                          (Case T-424/03)
of the decision on the fact that ARGEV has given exclusive
contracts in the relevant collecting region to those disposal
                                                                                                    (2004/C 59/44)
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                                      (Language of the case: English)
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.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
Moreover, the applicants claim that the services contract                 European Communities on 22 December 2003 by European
satisfies the requirements of the block exemption in Regulation           New Car Assessment Programme (‘Euro NCAP’), Brussels,
No 2790/1999 (1). Even if the services contracts of ARGEV                 Belguim, represented by Mr S. Kinsella and Mr K. Daly,
contained an obligation of exclusivity (quod non) the agree-              Solicitors.