CELEX: C2004/059/44
Language: en
Date: 2004-03-06 00:00:00
Title: 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

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.
 ---pagebreak--- C 59/28                EN                        Official Journal of the European Union                                          6.3.2004
The applicant claims that the Court should:                              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
—     Direct the defendant to honour the settlement agreement            claimed in subsequent correspondence, represented the final
      reached with the applicant and to pay it a total final sum         amount due under the agreement.
      in respect of the Grant Agreement of EUR 40 919,65.
—     Annul the Commission’s Decision of 20 October 2003                 In support of its application the applicant first submits that a
      to pay only EUR 257 598,91, despite the existence of the           binding settlement agreement was reached in May 2003
      settlement agreement.                                              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
—     In the alternative to the first and second pleas above,            no settlement agreement was reached, the applicant claims
      should the Court find that no settlement agreement exists,         that the Commission was bound to pay the original amount
      to order the defendant to pay the applicant the final              claimed, i.e. EUR 305 305,30, since it failed to express its
      amount specified in its Final Report, less amounts already         concerns within sixty days of receipt of the application of
      paid, totalling EUR 47 706,39.                                     payment. The applicant further argues that, in any case, the
                                                                         Commission’s decision to pay the applicant only
                                                                         EUR 257 598,91 should be annulled for failure to state reasons
—     In the further alternative to the first and second pleas           and for non-respect of the applicant’s right to be heard by the
      above, should the Court find that no settlement agreement          Commission before the final decision was adopted.
      exists, annul the Commission’s Decision of 20 October
      2003 to pay only EUR 257 598,91 despite the applicant’s
      contractual claim in the Final Report for
      EUR 305 305,30.
—     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.
                                                                         Action brought on 21 December 2003 by Gregorio
                                                                         Valero Jordana against the Commission of the European
—     Order the defendant to pay the costs of these proceedings.                                   Communities
                                                                                                 (Case T-429/03)
Pleas in law and main arguments                                                                   (2004/C 59/45)
                                                                                            (Language of the case: French)
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             An action against the Commission of the European Communi-
assessment of certain types of vehicles, most notably four               ties was brought before the Court of First Instance of the
wheel drive vehicles. Thereafter, on 12 October 2001 the                 European Communities on 21 December 2003 by Gregorio
applicant and the Commission concluded a Grant Agreement                 Valero Jordana, residing in Uccle (Belgium), represented by
the terms of which provided that the applicant would present             Nicolas Lhoëst, lawyer, with an address for service in Luxem-
to the Commission a final statement of all eligible costs, that          bourg.
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               The applicant claims that the Court should:
paid within sixty days unless the Commission, within that
period, informed the applicant that the request was not                  —    Annul the decision of the appointing authority dated
admissible . On 10 December 2002 the applicant submitted                      19 December 2003 confirming the applicant’s initial
an application for payment of the outstanding balance, of the                 classification in Grade A 7;
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                —    In so far as necessary, annul the decision of the appointing
certain queries with the applicant. These led to further                      authority of 9 September 2003 rejecting the applicant’s
submissions of documents by the applicant and a meeting                       complaint;
between the parties representatives. On 2 May 2003 the
Commission informed the applicant that final payment would               —    Order the defendant to pay all the costs of the proceed-
be EUR 298 518,65 and asked the applicant to mark its                         ings.