CELEX: C2002/044/35
Language: en
Date: 2002-02-16 00:00:00
Title: Case T-289/01: Action brought on 27 November 2001 by Der Grüne Punkt — Duales System Deutschland Aktiengesellschaft against the Commission of the European Communities

C 44/18                EN                     Official Journal of the European Communities                                      16.2.2002
—     order any other measure which the Court may deem                   —     in the alternative, declare the decision in question void in
      appropriate requiring the Commission to fulfil its obli-                 its entirety;
      gations under Article 233 EC and, more specifically,
      requiring the Commission to reexamine the situation;
                                                                         —     annul the applicant’s commitment as set out in para-
—     order the Commission of the European Communities to                      graph 72 of the decision;
      pay all the costs.
                                                                         —     order the defendant to pay the costs.
Pleas in law and main arguments
The applicant, a Spanish organisation of producers of frozen
tunny which has previously challenged before the Court of                Pleas in law and main arguments
First Instance a number of Commission regulations providing
for compensatory allowances granted to producer organis-
ations for the tuna supplied to the Community processing
industry in the quarters between 1 July 1999 and 30 September            Since 1991 the applicant has operated what is currently the
2000 (2), challenges in the present case the regulation relating         only system covering the whole of Germany for the collection
to the period between 1 October and 31 December 2000.                    and recovery of used sales packaging bearing its trade mark
                                                                         ‘Der Grüne Punkt’ (‘Green Dot’). The applicant organises
                                                                         regular collections of packaging from nearly all private house-
The pleas in law and main arguments are similar to those                 holds in Germany. The applicant grants domestic and foreign
advanced in Case T-142/01 (3).                                           manufacturers and/or distributors the right to mark sales
                                                                         packaging covered by the applicant’s exemption system under
(1) OJ 2001 L 224, p. 4.
                                                                         the terms of a uniform agreement on use of the mark.
(2) Case T-142/01.
(3) OJ C 245, p. 28.
                                                                         In September 1992 the applicant notified the Commission of
                                                                         its statutes and a sample of the agreements underlying the
                                                                         system. In January 1996, at the request of the defendant, the
                                                                         applicant gave the commitment on joint use set out in
                                                                         paragraph 71 of the contested decision and subject to various
                                                                         restrictions. In March 1997 the Commission announced its
Action brought on 27 November 2001 by Der Grüne                          intention to take a favourable view of all the agreements
Punkt — Duales System Deutschland Aktiengesellschaft                     notified pursuant to Article 19(3) of Regulation No 17 (1).
  against the Commission of the European Communities
                         (Case T-289/01)
                                                                         By decision of 20 April 2001 the Commission required the
                                                                         applicant also to allow the use of the ‘Green Dot’ mark for
                          (2002/C 44/35)                                 packaging which is not part of the applicant’s system but part
                                                                         of that of a competitor and is intended for disposal by that
                   (Language of the case: German)                        competitor. The applicant brought an action against that
                                                                         decision before the Court of First Instance (2).
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               In June 2001 the defendant informed the applicant that it
European Communities on 27 November 2001 by Der Grüne                    intended to attach conditions to the the decision on exemption.
Punkt — Duales System Deutschland Aktiengesellschaft, Co-                According to the applicant those conditions go far beyond the
logne (Germany), represented by W. Deselaers, B. Meyring and             commitment given by the applicant. On 17 September 2001
E. Wagner, with an address for service in Luxembourg.                    the defendant finally issued the contested decision on exemp-
                                                                         tion subject to two such conditions.
The applicant claims that the Court should:
—     declare Article 3(a) and (b) of the Decision of the                The applicant seeks the annulment of Article 3(a) and (b) of
      defendant of 17 September 2001 (C(2001) 2672 final)                that decision and submits that the conditions imposed in it
      relating to a proceeding under Article 81 of the EC Treaty         prejudice its legal position as it is forced to accept the use of
      and Article 53 of the EEA Agreement void;                          its collection and sorting facilities by competitors.
 ---pagebreak--- 16.2.2002               EN                    Official Journal of the European Communities                                             C 44/19
The applicant argues that, by imposing the condition in                  Pleas in law and main arguments
Article 3(a) of the decision, the defendant has applied
Article 81(3) EC incorrectly inter alia in that the condition is
not objectively necessary as the use of the collection and               The applicant is challenging a demand for repayment of
sorting facilities is in no way indispensable for the activities of      Community grants totalling EUR 464 329,22 made by the
competitors. Moreover, the condition, which is dispro-                   Commission in the contested debit note.
portionate, entails an encroachment on the specific subject
matter of the applicant’s trade mark and distortion of compe-            The applicant and the Community concluded, within the
tition to the detriment of the applicant.                                framework of the LIFE project (1), a contract relating to the
                                                                         planned ‘Ecological revitalisation of the Brandenburgische
                                                                         Elbtalaue’: preparatory planning and Gnevsdorfer Werder sub-
The applicant argues, further, that, by imposing the condition           project’. The Commission undertook to participate by making
in Article 3(a), the defendant has applied Article 86(2) EC              a contribution of 50 % of the actual cost, but not exceeding
incorrectly, since the applicant, which is entrusted with a              ECU 1,5 million. The project thus promoted, which was
service of general interest, can no longer operate its country-          designed to prepare the reinstatement of the embankment
wide system under economically viable conditions and make                between the municipalities of Lenzen and Wustrow, was
the necessary adjustments between profitable and less profit-            finished in 1998. Shortly before the end of the project, it
able sectors.                                                            became apparent that it would not be possible to reinstate the
                                                                         embankment as extensively as had been planned.
Moreover, by imposing the condition in Article 3(b) the
defendant has applied Article 86(2) EC incorrectly. Finally, the         In February 2001 the Commission gave notice that, in its view,
defendant, by seeking the commitment of 25 September 1998                the applicant, in carrying out the project, had partly deviated
(recital 72), has breached the fundamental right to freedom of           from the contract and that, since the applicant had reduced
access to justice.                                                       the surface area of the project, the Commission was only able
                                                                         to co-finance the work done in the reduced area. By the
                                                                         contested decision, the Commission called upon the applicant
(1) OJ C 100, p. 4.                                                      to repay to it EUR 464 329,33.
(2) Case T-151/01 Der Grüne Punkt — Duales System Deutschland
    AG v Commission OJ 2001 C 289, p. 6.
                                                                         The applicant asserts that the Community is not entitled to
                                                                         demand the repayment at issue by means of a Commission
                                                                         decision; instead, it is obliged to have recourse to law
                                                                         before the national courts. In addition, it maintains that the
                                                                         Commission has failed to comply with its obligation to provide
                                                                         a statement of reasons and has violated the applicant’s rights
                                                                         of defence. Finally, the Commission has infringed the principle
Action brought on 28 November 2001 by the Land                           of proportionality.
Brandenburg against the Commission of the European
                            Communities
                                                                         (1) Council Regulation (EEC) No 1973/92 of 21 May 1992 estab-
                                                                             lishing a financial instrument for the environment (LIFE) (OJ 1992
                          (Case T-290/01)                                    L 206, p. 1), as amended by Regulation (EC) No 1404/96 of
                                                                             15.7.1996 (OJ 1996 L 181, p. 1).
                           (2002/C 44/36)
                   (Language of the case: German)
                                                                         Action brought on 30 November 2001 by Dessauer
An action against the Commission of the European Communi-                Versorgungs- und Verkehrsgesellschaft mbH — DVV —
ties was brought before the Court of First Instance of the               Stadtwerke and four other undertakings against the
European Communities on 28 November 2001 by the Land                               Commission of the European Communities
Brandenburg (Germany), represented by G. Schohe and T. Mas-
ing, lawyers, with an address for service in Luxembourg.                                             (Case T-291/01)
                                                                                                      (2002/C 44/37)
The applicant claims that the Court should:
—     annul the decision contained in the Commission’s debit                                 (Language of the case: German)
      note No 3240305411 of 13.9.2001 addressed to the
      applicant, relating to project No LIFE94/D/
      A211/00029/BND re Contract No B4-3200/94/730;                      An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
—     order the defendant to pay the costs.                              European Communities on 30 November 2001 by Dessauer