CELEX: C2001/289/63
Language: en
Date: 2001-10-13 00:00:00
Title: Case T-151/01: Action brought on 5 July 2001 by Der Grüne Punkt — Duales System Deutschland AG against the Commission of the European Communities

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.
 ---pagebreak--- 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
and the appeal function of that mark and thereby jeopardise              —     annul the decision of the appointing authority of 13 Sep-
the efficacy of the applicant’s system. At almost the same time                tember 2000 filling at Grade A 1 the post of Deputy
it would lead to a total dilution of the mark, and the recognised              Director General responsible for coordination of Director-
signal effect of the mark would be destroyed in a very short                   ates C, D and E of the Directorate-General for Agriculture
time. The applicant submits that the total dilution of the mark                (COM/094/00);
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
interest and that accordingly the rules governing competition,           —     annul the implied decision rejecting the applicant’s com-
including those of Article 82 EC, apply to it only in so far as                plaint;
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 Communi-
                                                                         ties 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.