CELEX: C2001/289/62
Language: en
Date: 2001-10-13 00:00:00
Title: Case T-146/01: Action brought on 2 July 2001 by D.L.D. Trading Company Import-Export, spol. s.r.o. against the Council of the European Union

13.10.2001            EN                    Official Journal of the European Communities                                     C 289/25
European Communities on 20 June 2001 by Entorn, Sociedat               Action brought on 2 July 2001 by D.L.D. Trading Com-
Limitada Enginyeria i Serveis, whose registered office is in           pany Import-Export, spol. s.r.o. against the Council of the
Barcelona (Spain), represented by Marı́a do Carmo Belard-                                      European Union
Kopke Marques-Pinto.
                                                                                               (Case T-146/01)
The applicant claims that the Court should:                                                    (2001/C 289/62)
                                                                                         (Language of the case: German)
—     annul in its entirety Commission Decision C(1999) 534
      of 4 March 1999 withdrawing the assistance granted to
      Entorn, Sociedat Limitada Enginyeria i Serveis under
      Decision C(93) 3394 of 26 November 1993 relating to              An action against the Council of the European Union was
      the granting of EAGGF — Guidance Section assistance in           brought before the Court of First Instance of the European
      accordance with Council Regulation (EEC) No 4256/88              Communities on 2 July 2001 by D.L.D. Trading Company
      for Project No 93.ES.06.030 entitled ‘Project demonstrat-        Import-Export, spol. s.r.o., Brno, Czech Republic, represented
      ing sumac cultivation using new cultivation techniques’;         by Johannes Hintermayr, Georg Minichmayr and Peter Burg-
                                                                       staller.
—     order the Commission of the European Communities to
      pay the costs.                                                   The applicant claims that the Court should:
                                                                       1.    order the Council to pay the applicant ATS
                                                                             10 000 000 within 14 days and declare the current
                                                                             version of Article 5(8) of Council Directive 69/169/EEC
                                                                             concerning travellers’ allowances and Regulation (EC)
Pleas in law and main arguments                                              No 2744/98 contrary to Community law;
                                                                       2.    order the Council to pay the costs.
The applicant claims, first, that the Commission has committed
an error of assessment of the facts in regarding it as the
addressee of the contested decision ordering the repayment of          Pleas in law and main arguments
EUR 725 094. In the applicant’s view, the Commission
acknowledged from the start of the project that the beneficiary
of the Community financial contribution was Entorn, Trading            The applicant is established in Brno, Czech Republic, and
Limited, a company incorporated under Irish law, with which            operates two ‘Duty Free Shops’ in that country. In practice, it
the applicant, Entorn, Sociedat Limitada Enginyeria i Serveis,         sells goods exclusively to travellers who import them into
has no economic, legal or financial connection whatsoever. It          Austria in their personal luggage for their personal use.
was to that organisation that was actually transferred the sum
of EUR 725 094, now being claimed from the applicant who
never received any monies whatever from the Commission.
                                                                       It argues that Council Regulation (EC) No 2744/98 (1) and/or
                                                                       Article 5(8) of Directive 69/169/EEC as amended by Council
                                                                       Directive 91/191/EEC (2) are contrary to primary Community
                                                                       law and the general principles of the Community and are
The applicant submits, secondly, that the contested decision is        illegal.
vitiated by a breach of essential procedural requirements, since
the formalities necessary for its adoption have not been
complied with. Indeed, the Commission has not provided the             The Council regulation on exemption from customs duty as
defendant with an opportunity to defend itself prior to the            amended by Regulation (EC) No 2744/98 exempts imports of
closure of the administrative procedure, thereby offending             goods from a non-member country contained in luggage
against the fundamental principle of Community law which               which are not commercial in character. However, the exemp-
provides that, in any proceedings against a person which may           tion applies only up to a certain maximum value. Pursuant to
result in a decision adversely affecting it, the right to a fair       a derogating provision, the duty-free limit which applied in
hearing must be observed, a principle which applies even               Austria until 31 December 1997 was 75 ecus. On 14 Decem-
where there does not exist any legislation governing such              ber 1998, the Council adopted Regulation (EC) No 2744/98,
procedure.                                                             whereby the duty-free amount may be limited by national
                                                                       measures, and made that regulation enter into force retro-
                                                                       actively on 1 January 1998, extending the derogation from the
                                                                       uniform system of exemption from customs duty for a period
                                                                       of eight years overall.
 ---pagebreak--- 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 Communi-
ties 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 Luxem-                  or 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.