2001/463/EC: Commission Decision of 20 April 2001 relating to a proceeding pursuant to Article 82 of the EC Treaty (Case COMP D3/34493 — DSD) (Text with EEA relevance) (notified under document number C(2001) 1106)
The conduct of Der Grüne Punkt - Duales System Deutschland AG, Cologne (hereinafter: "DSD"), in requiring, under the first sentence of Article 4(1) and the first sentence of Article 5(1) of the Trade Mark Agreement, payment of a licence fee for the total quantity of sales packaging carrying the Green Dot trade mark and put into circulation in Germany is incompatible with the common market even where undertakings subject to the obligations arising out of the Packaging Ordinance:
(a) either use DSD's exemption service as referred to in Article 2 of the Trade Mark Agreement only for partial quantities or, instead of using the said service, put into circulation in Germany uniformly designed packaging which is also in circulation in another member country of the European Economic Area and participates in a take-back system using the Green Dot trade mark, and
(b) prove that, in respect of the quantity or partial quantity for which they do not use the exemption service, they fulfil their obligations under the Packaging Ordinance through competing exemption systems or through self-management solutions.
DSD shall bring the infringement referred to in Article 1 to an end immediately.
DSD shall refrain from continuing or repeating the conduct described in Article 1 or from taking measures having the same effect.
DSD shall further fulfil the terms set out in Articles 3 to 7.
DSD shall undertake vis-à-vis all parties to the Trade Mark Agreement not to charge any licence fee for such partial quantities of sales packaging carrying the Green Dot trade mark as are put into circulation in Germany for which the exemption service referred to in Article 2 of the Trade Mark Agreement is not used and for which the Packaging Ordinance obligations have demonstrably been fulfilled in another way.
The commitment in the first paragraph shall replace a derogation under the second sentence of Article 4(1) of the Trade Mark Agreement.
1. In the case of packaging which is collected and recovered in another Member State under a system using the Green Dot trade mark and which is put into circulation using the trade mark in the territory covered by the Packaging Ordinance, DSD shall not charge a licence fee if the requirements of the Packaging Ordinance have demonstrably been met otherwise than through participation in the system set up by DSD under Section 6(3) of the Ordinance.
2. DSD may require, as a precondition for the waiver of the licence fee, that it be made clear to the final consumer on the packaging referred to in paragraph 1, in words or other suitable form placed close to the Green Dot trade mark, that the packaging does not participate in the dual system set up by DSD under Section 6(3) of the Ordinance.
3. In the event of disagreement over the recognisability of the notice, the parties shall within one week of either or both sides finding that such disagreement has arisen, ask the Commission to appoint an expert.
The expert shall be charged with determining within four weeks whether, having regard to the packaging's basic function, the possible forms of the notice discussed by the parties fulfil the requirements set out in paragraph 2.
The expert's costs shall be borne by the parties equally.
1. Where there is partial or complete participation in a competing exemption system, the system operator's confirmation that the relevant quantity of packaging is covered by the competing system shall constitute sufficient proof that the Packaging Ordinance obligations under Articles 3 and 4 have been fulfilled in another way.
2. Where there is partial or complete participation in a self-management solution, the subsequent presentation of an independent expert's certificate stating that the take-back and recovery requirements for the relevant amount of packaging have been fulfilled shall be sufficient. The certificate may be issued either to the individual manufacturer or distributor or to an association of self-managers.
3. DSD may on no account require the certificate to be presented at an earlier time than is laid down under the Packaging Ordinance.
4. Irrespective of the version of the Packaging Ordinance in question, the fact that the certificate confirms to the contractual partner that the take-back and recovery requirements, related to a specific quantity of packaging, have been fulfilled shall suffice for the proof to be furnished to DSD.
5. Should the certificate contain other information, this shall be obliterated.
6. Both the system operator's confirmation and the independent expert's certificate may be replaced by an accountant's certificate confirming retrospectively the fulfilment of the Packaging Ordinance obligations in respect of a specific volume of packaging.
7. Other provisions of the Trade Mark Agreement shall not be applied in such a way as to require a higher level of proof to be furnished to DSD.
1. DSD shall, as from the date of notification of this Decision, enter into the commitments set out in Articles 3, 4 and 5 vis-à-vis all parties to the Trade Mark Agreement and shall bring this to the attention of the said parties within two months of the notification of this Decision.
2. The provisions of the Trade Mark Agreement may not be applied in such a way that they delay the immediate performance of the obligation set out in paragraph 1.
DSD shall inform the Commission, within three months of notification of this Decision, of the fulfilment of the commitments under Articles 3 to 6.
This Decision is addressed to:
Der Grüne Punkt - Duales System Deutschland AG Frankfurter Straße 720-726 D - 51145 Cologne
Done at Brussels, 20 April 2001
For the Commission
Mario Monti
Member of the Commission
(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ L 354, 30.12.1998, p. 18.
(4) OJ C 100, 27.3.1997, p. 4.
(5) See Cologne Regional Court judgment of 13 January 2000, ref. 31 0 991/99.
(6) See Section 6(3) and Section 3(1), point 2, and (10), and the third sentence of paragraph 1 of Annex I to the Packaging Ordinance.
(7) (Question put by the Commission:) "Does the Packaging Ordinance allow a range of packaging to be uniformly marked despite its being partially disposed of under Section 6(3) of the Packaging Ordinance (e.g. in the circumstances provided for in the ninth sentence of Section 6(1) of the Ordinance), bearing in mind that the distributor cannot foresee which specific packaging will be disposed of in the vicinity of the shop and which will be disposed of in the vicinity of the home?" (Answer given by Germany:) "The marking of packaging with the system mark pursuant to paragraph 2 of point 4 of Annex I in the absence of membership of the system is not punishable by a fine under the Packaging Ordinance. It may, however, be caught by other legal provisions, such as trade mark law."
(8) (Question put by the Commission:) "Is it correct to say that, pursuant to the Packaging Ordinance, the final consumer is free to decide whether to leave the packaging in the shop or to bring it back there, or to take it to a disposal point near his home?" (Answer given by Germany:) "The Packaging Ordinance does not contain any express provision requiring the final consumer to return the packaging. The assumption contained in the question is therefore correct."
(9) Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, at paragraph 41.
(10) Case C-62/86 Akzo v Commission [1991] ECR I-3439, at paragraph 60.
(11) Case T-30/89, Hilti v Commission [1991] ECR II-1439, at paragraph 92 (upheld on appeal by the Court of Justice in Case C-53/92-P [1994] ECR I-667).
(12) Case 322/81 Michelin v Commission [1983] ECR 3461, at paragraph 57.
(13) See footnote 9.
(14) This Decision merely comments on those cases in which all of the uniformly designed sales packaging put into circulation is accessible to the DSD system. Cases in which only some of the uniformly designed packaging is collected by DSD or in which some of the packaging is, for legal reasons, not accessible to the DSD system (see recitals 55, 56 and 57) are not dealt with in this Decision.
(15) Case 27/76 United Brands v Commission [1978] ECR 207, at paragraph 190.
(16) See footnote 9.
(17) Case C-202/88 France v Commission [1991] ECR I-1271, at paragraph 51.
(18) Commission Decision 95/489/EC of 4.10.1995 in GSM-Italia (OJ L 280, 23.11.1995, p. 49, at paragraph 15).
(19) Commission Decision 98/531/EC of 11.3.1998 in Van den Bergh Foods Limited (OJ L 246, 4.9.1998, p. 1, at paragraph 262).
(20) Case 53/87 CICRA and another v Renault [1988] ECR 6039, at paragraph 16; Case 238/87 Volvo v Veng [1988] ECR 6211, at paragraph 9; Case T-70/89 BBC v Commission [1991] ECR II-535, at paragraph 59; Case T-198/98 Micro Leader v Commission [1999] ECR II-3989.
(21) See footnote 20 (BBC v Commission), at paragraph 61.
(22) Berlin Higher Regional Court, judgment of 14 June 1994, BB 1994, 2299.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
