Avis juridique important
Order of the President of the Court of First Instance of 15 November 2001. - Der Grüne Punkt - Duales System Deutschland AG v Commission of the European Communities. - Interlocutory proceedings - Abuse of dominant position - Article 82 EC - Trade mark law - Prima facie case - Urgency - Balance of interests. - Case T-151/01 R.
European Court reports 2001 Page II-03295
Summary
Parties
Grounds
Operative part
1. Applications for interim measures - Suspension of operation of a measure - Suspension of operation of a decision requiring an undertaking to put an end to an infringement of competition law - Conditions for granting - Prima facie case - Examination of complex legal questions by the judge hearing the application for interim relief - Limits
(Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))
2. Applications for interim measures - Suspension of operation of a measure - Interim relief - Conditions for granting - Serious and irreparable damage - Standard of proof - Pecuniary damage
(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))
3. Applications for interim measures - Suspension of operation of a measure - Interim relief - Conditions for granting - Urgency - Matters to be taken into consideration
(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))
Summary1. The question whether the contractual terms which an undertaking imposes on the participants in its system, when use of a trade mark does not coincide with the actual use of the service it provides, are essential to protect the essential function of the trade mark in question, or abusive, in that they are unfair within the meaning of Article 82, second paragraph, (a) EC, is a complex matter. The in-depth analysis needed to resolve the problems raised by that matter cannot be carried out by the judge hearing the application for interim relief in an examination of the merits, prima facie, of the action in the main proceedings.
( see para. 185 )
2. The urgency of an application for interim measures must be assessed in relation to the necessity for an interim order in order to prevent serious and irreparable damage to the party applying for those measures. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage of that kind. It is not necessary for the imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage - especially if its occurrence depends on a series of factors - is foreseeable with a sufficient degree of probability. However, the party seeking the suspension of operation of the measure or the interim relief is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely.
Furthermore, damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even as reparable only with difficulty, since it can be the subject of subsequent financial compensation. In accordance with those principles, an interim measure would be justified if it appeared that, if it were not granted, the party who sought it would be put in a position likely to jeopardise its existence before a final judgment was given in the main proceedings.
( see paras 187-188, 214 )
3. The urgency in granting an interim measure must result from the effects produced by the contested measure. For the purposes of that assessment, the response from the press to the decision whose suspension is sought and the possible harmful consequences of that for the applicant are irrelevant.
( see para. 200 )
PartiesIn Case T-151/01 R,
Der Grüne Punkt - Duales System Deutschland AG, established in Cologne (Germany), represented by W. Deselaers, B. Meyring, E. Wagner and C. Weidemann, lawyers, with an address for service in Luxembourg,
applicant,
v
Commission of the European Communities, represented by S. Rating, acting as Agent, with an address for service in Luxembourg,
defendant,
supported by
Vfw AG, established in Cologne, represented by H.F. Wissel, lawyer, with an address for service in Luxembourg,
Landbell AG, established in Mayence (Germany), represented by A. Rinne, lawyer, with an address for service in Luxembourg,
and
BellandVision GmbH, established in Pegnitz (Germany), represented by A. Rinne, lawyer, with an address for service in Luxembourg,
interveners,
APPLICATION for suspension of the operation of Article 3 of Commission Decision 2001/463/EC of 20 April 2001 relating to a proceeding pursuant to Article 82 of the EC Treaty (Case COMP D3/34493 DSD) (OJ 2001 L 166, p. 1), and of Articles 4, 5, 6 and 7 of that decision in so far as they refer to the said Article 3,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
GroundsLegal context
German legislation
1 On 12 June 1991, the German Government adopted the Verordnung über die Vermeidung von Verpackungsabfällen (Ordinance on the Avoidance of Packaging Waste (BGBl., 1991 I, p. 1234; hereinafter the Ordinance), an amended version of which entered into force on 28 August 1998. Under the Ordinance, which is intended to prevent or reduce the impact of packaging waste on the environment, manufacturers and distributors are placed under an obligation to take back and recover used sales packaging outside the public waste-management system. Sales packaging - the only packaging relevant to the present case - is packaging which is provided as a sales unit and is used by the final consumer, packaging used by the distributive trades, restaurants and other service providers which makes possible or facilitates the delivery of products to the final consumer, and non-returnable crockery and non-returnable cutlery. It constitutes a different category from transport packaging and secondary packaging.
2 Within the meaning of the Ordinance, a manufacturer is defined as someone who manufactures packaging, packaging materials or products from which packaging is directly made, or who imports packaging into the territory covered by the Ordinance. A distributor is someone who puts into circulation packaging, packaging materials or products from which packaging is made, or packaged goods, regardless of the marketing stage. A distributor within the meaning of the Ordinance may also be the mail-order trade. Lastly, a final consumer is someone who does not sell on the goods in the form in which they are delivered to him.
3 The obligations imposed on the manufacturers and distributors may be fulfilled by the undertakings concerned in two ways.
4 On the one hand, Paragraph 6(1) and (2) of the Ordinance provides that manufacturers and distributors are obliged to take back from final consumers, free of charge, used sales packaging at, or in the immediate vicinity of, the actual point of sale and to recover it in accordance with the quantitative requirements defined in the Annex to the Ordinance (the self-management solution). Under the ninth sentence of Paragraph 6(1): Where distributors do not fulfil the obligations laid down in the first sentence by taking back packaging at the point of sale, they shall ensure that it is taken back using an [exemption] system. Moreover, manufacturers and distributors may delegate responsibility for fulfilling all take-back and recovery obligations to third parties (Paragraph 11 of the Ordinance). The Ordinance also provides that, in the case of a self-management solution, [t]he distributor shall, by means of clearly visible, legible notices, draw the attention of the private final consumer to the fact that the packaging may be returned (third sentence of Paragraph 6(1)).
5 On the other hand, under the first sentence of Paragraph 6(3) of the Ordinance, the take-back and recovery obligation does not apply to manufacturers and distributors participating in a system which throughout the distributor's sales territory guarantees the regular collection of used sales packaging from the final consumer or in the vicinity of the final consumer (hereinafter the exemption system). The exemption system is restricted to sales packaging collected from private final consumers, namely private households and comparable sources of waste generation, in particular restaurants, hotels, canteens, government offices, barracks, hospitals, educational establishments, charitable organisations, the offices of professional people, agricultural holdings and craft enterprises, excluding print shops and other paper-using businesses.
6 Firms which do not participate in an exemption system continue to be subject to the self-management take-back obligation.
7 If an exemption system is to be approved by the competent authorities a number of requirements must be fulfilled, in particular, coverage which extends to at least the area of a Land, closeness to the final consumer, regular collections, and coordination with the public-law bodies responsible for waste disposal.
8 The Ordinance also requires packaging collected under exemption systems to be marked. Point 4(2) of Annex I to the Ordinance provides that manufacturers and distributors have to make known their participation in a system pursuant to Paragraph 6(3) of the Ordinance by marking packaging or other suitable means.
9 Since 1 January 2000 both the operators of exemption systems, as regards the packaging of those participating in their system, and manufacturers and distributors who have opted for a self-management solution have had to meet the same recovery quotas for individual materials.
10 Compliance with the take-back and recovery requirements is ensured, as appropriate, by certificates issued by independent experts or by verifiable evidence of the quantities of packaging collected and recovered.
Exemption system established by DSD
11 Since 1991, Der Grüne Punkt - Duales System Deutschland AG (hereinafter the applicant or DSD) has been the only undertaking operating an exemption system throughout Germany. For that purpose, at the beginning of 1993, DSD was recognised by the competent authorities of all the Länder.
12 The system established by DSD (hereinafter the DSD system) is called a dual system since the collection and recovery of packaging are effected by a private undertaking, outside the public waste disposal system.
13 DSD is financed by fees from undertakings belonging to the system. Undertakings become members of the system by signing with DSD an agreement which grants them the right, against payment of a fee, to use the logo Der Grüne Punkt (Green Dot). They are required to affix the logo Der Grüne Punkt to their sales packaging. DSD is the owner of the registered collective mark Der Grüne Punkt.
14 Thus, sales packaging with the logo Der Grüne Punkt is collected, depending on the material of which it is composed, in special bins (metal, plastic and composite materials) or in containers placed close to private households (especially paper and glass), while residual waste is thrown into the bins provided by the public waste disposal bodies.
15 However, DSD does not collect the used sales packaging itself, but subcontracts the service to local companies with sole responsibility for collecting and sorting used sales packaging in a certain district.
16 Once the material has been sorted, it is conveyed to a recycling plant either directly by the collector or with the help of third parties, or handed over to companies which have given DSD an assurance that they will recover the used packaging.
17 The system operated by DSD does not collect all sales packaging within the meaning of the Ordinance (see paragraph 1 above) but only that - made up of all materials - from private households and users treated as such.
18 Other undertakings organise the taking back and recovery of some sales packaging. However, those collection and recovery systems do not have an adequate rate of cover within the meaning of Paragraph 6(3) of the Ordinance. Those undertakings operate as third parties under Paragraph 6(1) and (2) of the Ordinance read in conjunction with Paragraph 11 thereof (see paragraph 4 above), that is to say, they directly assume the take-back and recovery obligations of the manufacturers or distributors.
Contractual provisions
19 The relationship between DSD and the undertakings which participate in its system is governed by the agreement for the use of the logo Der Grüne Punkt (hereinafter the Agreement or the Trade Mark Agreement).
20 The Agreement stipulates that, in order to participate in the system, an undertaking must obtain permission, from DSD and for a fee, to use the logo Der Grüne Punkt (Article 1(1) of the Agreement).
21 DSD undertakes vis-à-vis the participating undertaking that it will effect the collection, sorting and recovery of its used sales packaging in such a manner as to exempt it from its take-back and recovery obligations in respect of that packaging (Article 2 of the Agreement).
22 The participating undertaking is obliged to display the logo Der Grüne Punkt, in a particular form, on all registered packaging intended for national consumption, so that it is visible to the final consumer. DSD may release it from this obligation (Article 3(1) of the Agreement).
23 Under Article 4(1) of the Agreement:
The user of the logo shall pay [DSD] a licence fee for all packaging bearing the logo "Der Grüne Punkt" which it distributes on German territory in accordance with the agreement. Exceptions to this rule require a separate written agreement.
24 The amount of the licence fee is calculated on the basis of two factors, namely the weight of the packaging and the type of material used, and the volume or surface area of the packaging.
25 The licence fee may be adjusted unilaterally by DSD. Any increase or reduction in the fee is subject to the following principles: licence fees are calculated without any profit mark-up and they serve solely to cover the costs of collection, sorting and recovery and the associated administrative costs (Article 4(3) of the Agreement). As far as possible, the system costs must be allocated to the specific types of materials according to the proportion these represent.
26 Under Article 5(1) of the Agreement:
A charge shall be made for all packaging carrying the logo "Der Grüne Punkt" which is distributed by the user of the logo in the Federal Republic of Germany. ...
27 Finally, Point 5 of the Rules for the Use of the Collective Mark (Markensatzung), adopted by DSD, provides:
Collective marks were created, first and foremost, to enable consumers and traders to recognise products whose packaging is covered by the DSD system and for which collection and recovery outside the public waste disposal service is possible and to distinguish them from other products, next, to encourage consumers to place that packaging in the collection containers of the DSD system and, finally, to draw attention to the service of collection and recovery of secondary raw materials provided by the DSD system.
Background to the dispute
28 On 2 September 1992 DSD notified the Commission of its Statutes and also of a number of agreements - the Service Agreement, the Trade Mark Agreement and the Guarantee Agreements - with a view to obtaining negative clearance or a decision granting exemption.
29 Following publication of the notice in the Official Journal of the European Communities (OJ 1997 C 100, p. 4) pursuant to Article 19(3) of Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87), in which the Commission announced its intention to give a favourable opinion on the agreements notified, it received observations from interested third parties concerning, in particular, various aspects of the application of the Trade Mark Agreement. They alleged particularly that competition might be distorted if an undertaking were charged twice as a consequence of participating in DSD's system and that of another contractor.
30 On 15 October 1998 DSD submitted to the Commission commitments aimed at avoiding double charging in the event of participation in an exemption system operating at regional level.
31 On 3 November 1999, the Commission stated that that commitment, which covered only exemption systems, needed to be extended to include self-management solutions used for the disposal of partial quantities of sales packaging.
32 On 15 November 1999, complainants presented fresh observations to the Commission.
33 By letter of 13 March 2000, DSD submitted two further commitments to the Commission.
34 On 20 April 2001, the Commission adopted Decision 2001/463/EC relating to a proceeding pursuant to Article 82 of the EC Treaty (Case COMP D3/34493 - DSD)(OJ 2001 L 166, p. 1; hereinafter the contested decision). (Only the German text is authentic.)
35 It is apparent from the contested decision that the commitments made in relation to the Agreement cover several situations.
36 One commitment covers the situation in which exemption systems, restricted to one or more Länder, are set up as alternatives to the DSD system. In that case, uniformly designed packaging will be taken back, in those Länder, by one of the operators of the new systems and, in the other Länder, by DSD. In that situation, DSD has made the following commitment (recital 59 of the contested decision):
On condition that regional alternative systems to the current Dual System are created and are formally approved by the highest competent regional authority under Paragraph 6(3) of the Packaging Ordinance, [DSD] is prepared to apply the Trade Mark Agreement in such a way that licensees are able to participate in such a system as regards some of their packaging. [DSD] will not charge a licence fee under the Trade Mark Agreement for packaging that can be shown to be covered by such an alternative system. A further condition for release from the licence fee obligation in respect of packaging bearing the mark ["Der Grüne Punkt"] is that protection of the trade mark "Der Grüne Punkt" should not be impaired.
37 DSD also made the following commitment for cases in which manufacturers and distributors opt for a self-management solution for part of their sales packaging and participate in the DSD system for the remainder (recital 61 of the contested decision):
Where, pursuant to Paragraph 6(1) and/or (2) (read, where appropriate, in conjunction with Paragraph 11) of the Packaging Ordinance, manufacturers and distributors organise the take-back and recovery of some sales packaging distributed in the territory covered by the Packaging Ordinance and participate in the DSD system for the remainder (ninth sentence of Paragraph 6(1)), [DSD] will not charge a licence fee under the Trade Mark Agreement for those quantities of sales packaging which can be shown to have been taken back in accordance with Paragraph 6(1) and/or (2) of the Packaging Ordinance. Evidence is to be furnished in accordance with the requirements of point 2 of Annex I to the Packaging Ordinance.
38 At the hearing before the President of the Court (paragraph 58 below), it was stated that that commitment must be construed as meaning that the part of the sales packaging taken back in accordance with Paragraph 6(1) and/or (2) is not to bear the mark Der Grüne Punkt.
39 In the section of the contested decision devoted to legal assessment, the Commission concluded, first of all, that DSD has a dominant position.
40 For this purpose, it first defined the relevant market. After analysing the product and geographic market in question, it concluded that the broadest definable market should therefore be deemed to be the market for the organisation of the take-back and recovery from private final consumers of used sales packaging in Germany (recital 92 of the contested decision).
41 It examined DSD's economic strength on the market thus identified. It points out that DSD is the only undertaking to offer an exemption packaging waste collection system in Germany and notes that its share of the relevant market - as identified in the previous paragraph - is at least 82% (recital 95). Furthermore, the existence of considerable barriers to market entry also contributes to DSD's economic strength (recital 96 of the contested decision).
42 The Commission then considered the question of abuse of a dominant position.
43 The Commission's assessment is based, in that respect, on the premiss that DSD thus links the fee payable under the Agreement not to use of the service exempting the other party from its take-back and recovery obligations under Article 2 of the Agreement, but solely to the use of the mark "Der Grüne Punkt" on sales packaging and on the finding that DSD requires the other party to affix the mark to all registered packaging for domestic consumption unless the other party is released from this obligation at DSD's discretion (recital 100 of the contested decision). The Commission infers from that that DSD abuses its dominant position whenever an undertaking subject to the obligation avails itself of DSD's exemption service only in respect of some of its sales packaging or dispenses entirely with DSD's exemption service in Germany (recital 101 of the contested decision). Indeed, by imposing unfair prices and trading conditions when there is no correlation between use of the mark and use of DSD's service providing exemption from the waste disposal obligation, DSD infringes subparagraph (a) of the second paragraph of Article 82 EC. The Commission states that through the combination of a contractual obligation to use the mark, on the one hand, and a linking of the fee to use of the mark, on the other, separate packaging and distribution channels are an inevitability (recital 112 of the contested decision).
44 Describing the abuse constituted by the licence fee more precisely by reference to specific cases, the Commission draws a distinction, in particular, between restriction of competition between DSD and other exemption systems (Group I) and restriction of competition between DSD and self-management solutions (Group II).
45 The Commission states that the provisions governing the licence fee are not justified either by the claim that the use of the mark Der Grüne Punkt for partial quantities of packaging, for which no exemption service is provided, is incompatible with the Ordinance (recitals 136 to 142) or by the need to preserve the identifying power of the mark Der Grüne Punkt (recitals 143 to 153). On this latter point, the Commission considers that [t]he essential function of the trade mark "Der Grüne Punkt" is ... fulfilled when it signals to the consumer that he has the option of having the packaging collected by DSD and concludes that [a]ccordingly, the function of the mark "Der Grüne Punkt" does not require that, where participation in the DSD system is only partial, only a partial quantity of the packaging should carry the trade mark (recital 145).
46 After finding that abuse of the dominant position is likely to have an appreciable effect on trade between Member States, the Commission examines, in accordance with Article 3(1) of Regulation No 17, the way in which DSD should be required to bring the infringements established to an end.
47 In that regard, recital 165 reads as follows:
In order to prevent the infringements established from being continued or repeated, DSD must undertake vis-à-vis all parties to the Trade Mark Agreement not to charge any licence fee for those partial quantities of sales packaging carrying the trade mark "Der Grüne Punkt" which are put into circulation in Germany but for which the exemption service referred to in Article 2 of the Trade Mark Agreement is not used. This commitment replaces a derogation under the second sentence of Article 4(1) of the Agreement.
48 The operative part of the contested decision is in these terms:
Article 1
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 "Der Grüne Punkt" 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 "Der Grüne Punkt" 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.
Article 2
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.
Article 3
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 "Der Grüne Punkt" 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.
Article 4
1. In the case of packaging which is collected and recovered in another Member State under a system using the "Der Grüne Punkt" 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 Paragraph 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 "Der Grüne Punkt" trade mark, that the packaging does not participate in the dual system set up by DSD under Paragraph 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.
Article 5
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.
Article 6
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.
Article 7
DSD shall inform the Commission, within three months of notification of this decision, of the fulfilment of the commitments under Articles 3 to 6.
Proceedings
49 By application lodged at the Court Registry on 5 July 2001, DSD brought an action under the fourth paragraph of Article 230 EC for the annulment of the contested decision.
50 By separate document lodged at the Court Registry on the same day, it also applied, pursuant to Article 242 EC, for the suspension of the operation of Article 3 of that decision, and of Articles 4, 5, 6 and 7 in so far as they refer to Article 3, pending a judgment from the Court of First Instance on the substance of the case.
51 In view of the voluminous nature of the arguments contained in the aforementioned application and of the necessity to be able to give a ruling as soon as possible in interlocutory proceedings, the applicant was asked to submit a new version of the application not exceeding 30 pages. The abridged version was lodged at the Court Registry on 13 July 2001.
52 The abridged version of the application was notified to the Commission on 16 July 2001.
53 By applications lodged at the Court Registry on 16, 19 and 20 July 2001 respectively, Vfw AG, Landbell AG and BellandVision GmbH applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.
54 The applications to intervene were served on the parties.
55 The Commission submitted its written observations on the application for interim measures on 28 August 2001.
56 DSD and the Commission stated in writing that they had no objection to the applications to intervene. However, DSD requested that, vis-à-vis the applicants to intervene, several annexes to the application for interim measures should be treated confidentially.
57 The non-confidential abridged version of the application for interim measures and the Commission's observations were served on the applicants to intervene on 5 September 2001. On the same day they were invited to attend the hearing.
58 The hearing before the President of the Court was held on 21 September 2001.
59 At that hearing, the President held that the applicants for leave to intervene had established an interest in the result of the case, in accordance with the second paragraph of Article 37 of the EC Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first paragraph of Article 46 thereof, and granted the three applications for leave to intervene in the present proceedings.
60 At the interlocutory proceedings stage, he also granted the request for confidential treatment of the information contained in the annexes to the application made by DSD, since such information may prima facie be regarded as secret or confidential within the meaning of Article 116(2) of the Rules of Procedure, a matter which was not disputed by the Commission.
61 That institution declared, also at the hearing, that it was not continuing with the plea of inadmissibility which it had raised in its observations; therefore there is no need to give a ruling on it.
Law
62 Under the combined provisions of Article 242 EC and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/ECSC, EEC, Euratom of 8 June 1993 (OJ 1993 L 144, p. 21), the Court of First Instance may, if it considers that circumstances so require, order that application of the contested act be suspended.
63 Article 104(2) of the Rules of Procedure provides that an application for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those conditions are cumulative, so that an application for suspension of operation must be dismissed if any one of them is absent (orders of the President of the Court of Justice in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30, and of the President of the Court of First Instance in Case T-350/00 R Free Trade Foods v Commission [2001] ECR II-493, paragraph 32). If necessary, the judge hearing the application for interim measures also weighs up the interests involved (order of the President of the Court of Justice in Case C-445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).
64 The measure requested must further be provisional inasmuch as it must not prejudge the points of law or fact in issue or neutralise in advance the effects of the decision subsequently to be given in the main action (order of the President of the Court of Justice in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 22).
1. Arguments of the parties
DSD's arguments
Prima facie case
65 As a preliminary point, DSD first defines the scope of Article 3 of the contested decision, stating that it covers the case of the user of the trade mark Der Grüne Punkt who wishes to participate in a competing system in respect of a partial quantity - an amount freely determined by himself - of a given packaging, to participate in the DSD system in respect of the remainder and to affix the trade mark Der Grüne Punkt indiscriminately to both parts.
66 DSD then states that the mark Der Grüne Punkt has a dual function. Firstly, it makes it possible to identify packaging which, because its manufacturers and distributers belong to the DSD system, is disposed of by that system: that is the indication-of-origin function. Secondly, it signals to consumers that they should dispose of that packaging in DSD's collection containers; that is the signal effect.
67 DSD also considers that the legal effect of Article 3 of the contested decision is to require it to grant licences to use the mark Der Grüne Punkt, even though the packaging carrying that mark will be able to be disposed of by a competitor, and to waive payment of licence fees for that part of the packaging. The applicant would therefore have to grant free compulsory licences to use the mark Der Grüne Punkt, as the Commission indeed acknowledged in a letter of 1 September 2000.
68 DSD puts forward four arguments in support of its submission that the licence fee system under Article 4(1) of the Agreement does not constitute an abuse within the meaning of Article 82 EC.
69 First, the applicant alleges that the specific subject-matter of the trade mark, which is protected under both national and Community law, is compromised.
70 Under national law, the mark Der Grüne Punkt is a collective mark within the meaning of Paragraph 97(1) of the Gesetz über den Schutz von Marken und sonstigen Kennzeichen (German Law on the protection of trade marks and other signs, BGBl., 1994 I, p. 3082, hereinafter the Markengesetz), which provides for the registration as a collective mark of any sign qualifying for protection as a trade mark within the meaning of Paragraph 3 [of the Markengesetz] which is capable of distinguishing the goods or services of the undertakings affiliated to the owner of the collective mark from those of other undertakings in terms of commercial or geographical origin, type, quality or other property. That mark was duly registered in 1991 with the Deutsches Patent- und Markenamt (German Patent and Trade Mark Office) under Paragraph 17 of the Warenzeichengesetz, the law in force at the time. The applicant infers from that that the indication-of-origin function of the trade mark was necessarily acknowledged.
71 On 18 September 1996 the Bundespatentgericht (Federal Patents Court) held that the trade mark Der Grüne Punkt indicates the environmental commitment of the undertakings participating in the DSD system and shows that the DSD system complies with the legal requirements concerning waste disposal. On 23 December 1996, the Landgericht Hamburg (Hamburg Regional Court) ruled that the trade mark Der Grüne Punkt contains specific information, namely that of recycling by the dual system and that those members of the public who are environmentally aware appreciate that fact and also particularly appreciate packaging identified in that way.
72 Although subsequently set aside by the Bundesgerichtshof (Federal Court of Justice), a judgment of the Oberlandesgericht Köln (Higher Regional Court, Cologne) of 8 May 1998 refers to the vital importance of the trade mark Der Grüne Punkt.
73 Under Community law, as interpreted by the Court of Justice, the specific subject-matter of the law on trade marks is to guarantee to the consumer or ultimate user the identity of the origin of the trade-marked product (Case 3/78 Centrafarm [1978] ECR 1823, paragraph 12), to protect the proprietor of the mark against a risk of confusion (Case C-317/91 Deutsche Renault [1993] ECR I-6227, paragraph 30) and to protect him against competitors wishing to take advantage of the status and reputation of the trade mark by selling products bearing it illegally (Case C-232/94 MPA Pharma [1996] ECR I-3671, paragraph 17, and Case C-63/97 BMW [1999] ECR I-905, paragraph 52). It is obvious that DSD's competitors, by affixing the mark Der Grüne Punkt to their sales packaging, whether or not it uses the DSD system, may benefit from that mark's reputation and importance.
74 In the contested decision, on the basis of a sentence in a judgment of the Kammergericht Berlin (Higher Regional Court, Berlin) of 14 June 1994, the Commission considers that the trade mark Der Grüne Punkt indicates that there is a possibility of disposal. However, that sentence is taken out of context. Whilst it is true, according to the applicant, that that court held that the mark Der Grüne Punkt has, for the target public, no meaning other than that the product on which it appears can be disposed of via the DSD system, it first, however, confirmed the indication-of-origin function of that mark and then merely explained the reason for which the mark Der Grüne Punkt is not an environmental quality mark.
75 Finally, the Commission implicitly acknowledged, in Article 4(2) of the contested decision that the indication-of-origin function was impaired (paragraph 48 above).
76 Secondly, DSD claims that the compulsory licensing of a trade mark is not acceptable because, unlike all the other intellectual property rights, a trade mark is first and foremost characterised by its distinctive nature. In that respect, Article 21 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter TRIPs), as set out in Annex 1 C to the Agreement establishing the World Trade Organisation, approved on behalf of the Community, as regards matters within its competence, by Council Decision 94/800/EC of 22 December 1994 (OJ 1994 L 336, p. 1) provides, without exception, that the compulsory licensing of trademarks shall not be permitted. Similarly, in Opinion 1/94 [1994] ECR I-5267, the Court of Justice considered that those rules, which are also binding on the Commission, prohibit the compulsory licensing of trade marks.
77 Thirdly, the compulsory licensing of the trade mark Der Grüne Punkt is not justified by significant competition interests. In that regard, DSD points out that the refusal by an owner of copyright or a registered design to grant a licence does not in principle constitute an abuse within the meaning of Article 82 EC (Case 238/87 Volvo [1988] ECR 6211, paragraph 8; Case C-23/99 Commission v France [2000] ECR I-7653, paragraphs 37 et seq., and Case T-198/98 Micro Leader v Commission [1999] ECR II-3989, paragraph 56), since a compulsory licence infringes the prerogatives forming part of the very substance of the exclusive right (Volvo, paragraph 8). An intervention as oppressive as a compulsory licence can therefore in principle be envisaged only in exceptional circumstances as defined in Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743, paragraph 50.
78 In that last judgment, the question was whether an undertaking occupying a dominant position may be required to grant a licence to a competitor. In the present case, the question is whether DSD is required to grant a licence to a customer to enable him to use the services of competing systems. In both cases, it is a matter of determining whether and, if so, in what circumstances, a dominant undertaking may be required, under Article 82 EC, actively to promote, by granting a licence, the competition which it faces.
79 In this case, it is not essential for a manufacturer/distributor to designate packaging with the mark Der Grüne Punkt in order to be able to opt for competing systems. It is simply, in a not inconsiderable number of cases, to use the Commission's expression, more agreeable or easier for customers to use, for no fee, the applicant's trade mark (see recitals 103 to 105 and 115 of the contested decision).
80 Besides, packaging which does not carry the mark Der Grüne Punkt can be marketed without difficulty. DSD adds that even selective marking of uniformly-designed packaging, whether or not it bears the trade mark Der Grüne Punkt, is common practice in certain sectors. The applicant cites as an example the marking of bottles of wine, packaging of building materials, computers and foodstuffs.
81 Users of the logo are able to make selective use of the mark Der Grüne Punkt on the basis of requirement forecasts. Furthermore, the lack of a licence has not prevented the appearance of some 40 groups of undertakings participating in a self-management solution.
82 Finally, DSD considers, unlike the Commission (recital 106 of the contested decision), that precise control of the quantities of packaging is possible owing to the cooperation of manufacturers and distributors. Thus, according to DSD, end distributor A may order a given quantity of packaging without the mark Der Grüne Punkt (either directly from the manufacturer or from a wholesaler who passes the order on to the manufacturer), because he wishes to take back that packaging in the shop, whereas distributor B orders a given quantity with the mark Der Grüne Punkt (either directly from the manufacturer or from a wholesaler), because he does not wish to take back that packaging in the shop. End distributors A and B could therefore accurately control, in collaboration with the undertakings in the previous marketing stages, the actual route taken by specifically marked packaging in the course of marketing (recital 106 of the contested decision), which they do indeed do in practice.
83 Fourthly, DSD considers that the stipulations contained in the first sentence of Article 4(1) of the Agreement, which does not provide an exception for cases in which the national market is shared, are reasonable for several reasons and do not therefore constitute an abuse of a dominant position.
84 The first reason is DSD's interest in being protected against distortions of competition owing to descriptions which are misleading and contrary to the requirement of transparency laid down by the Ordinance. In that regard, it points out that the fact that packaging carries the mark Der Grüne Punkt, even though there is no participation in the DSD system, fails to comply with the requirement stated in the Ordinance that marking is to be unambiguous (for cases of participation in an exemption system, see point 4(2) of Annex I to Paragraph 6 of the Ordinance cited in paragraph 8 above; for cases of participation in a self-management solution, see the third sentence of Paragraph 6(1) cited in paragraph 4 above). That requirement is intended to enable both consumers and authorities to determine, at any time, according to objective and clear criteria, by which system the polluter's specific packaging must be disposed of and, more specifically, which packaging must be taken back at the shop and which must not be.
85 Article 3 of the contested decision seriously misconstrues that requirement of transparency by having the effect of making it possible to give the consumer information which is contradictory and inconsistent with the facts regarding the disposal chain for which the packaging is destined. The Commission's premiss that a user of the logo may, merely by making a statement and in spite of using the mark Der Grüne Punkt, choose to participate in a competing system, is therefore not compatible with the general scheme of the Ordinance.
86 The second reason consists in the essential protection of the trade mark's signal effect. Compliance with the recovery rates depends on the voluntary cooperation of the final consumers when sorting the sales packaging. It follows that where packaging carrying the mark Der Grüne Punkt is nevertheless taken back by the distributor, under Paragraph 6(1) of the Ordinance, the consumer is misled with regard to his right to return the packaging to the shop in spite of its (incorrect) marking and by the impression created that it is sales packaging which will be collected in the bins/containers of the DSD system.
87 The effect of Article 3 of the contested decision is to destroy the signal effect of the mark Der Grüne Punkt, since, where the national market is shared, the final consumer is no longer able to know whether sales packaging carrying the mark Der Grüne Punkt should be thrown away in DSD's collection containers or in those of a third party.
88 The third reason put forward is connected with the fact that the obligation to use the logo Der Grüne Punkt is essential to the proper working of the DSD system. Indeed, the contractual obligation of the participants in the DSD system to use the logo on all their packaging (recital 112 of the contested decision), which the Commission does not describe as constituting an abuse, cannot be invoked to substantiate an allegation of abuse, since it is necessary to the proper working of the DSD system. DSD maintains that a collection system which depends on the cooperation of consumers cannot work without a uniform and memorable distinctive sign enabling them immediately to identify the system to which the packaging belongs and the appropriate container. Otherwise, the recovery rates would not be achieved.
89 The fourth reason is the need to use a practicable and verifiable criterion for invoicing DSD's services.
90 First of all, contrary to what the Commission claims in recital 111 of the contested decision, the licence fee scheme under Article 4(1) of the Agreement does not lead to a clearly disproportionate relationship between the services, namely the right to use the trade mark and the provision of a waste disposal system with total coverage within the meaning of Paragraph 6(3) of the Ordinance for all the packaging waste carrying the mark Der Grüne Punkt, and the consideration constituted by payment of a licence fee for all the packaging carrying that mark which is in the hands of the final consumer.
91 The Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) held, in a judgment of 11 August 1998, that the scheme under Article 4(1) of the Agreement is reasonable and does not constitute an abuse.
92 Furthermore, DSD maintains that it can determine precisely to what extent the packaging of a user of the logo is deposited in its collection containers only at the cost of very expensive sorting analyses, to which it could resort only in very exceptional circumstances. That explains why DSD refers to the amount of packaging marketed with the mark Der Grüne Punkt in order to calculate the waste disposal services which it has actually provided, since that is the only possible practicable and verifiable invoicing criterion. That flat-rate invoicing takes account of the fact that sales packaging waste is as a general rule produced close to households and that, in Germany, owing to the signal effect of the trade mark Der Grüne Punkt, consumers have adopted the habit of depositing packaging carrying that mark in DSD's collection containers.
Urgency
93 The applicant claims that, in the present case, the condition relating to urgency is satisfied on the ground that the immediate operation of Article 3 of the contested decision will result in a significant and irreversible change in the framework within which it carries out its activities (to that effect, orders of the President of the Court of Justice in Joined Cases 76/89, 77/89 and 91/89 R RTE and Others v Commission [1989] ECR 1141, paragraphs 15 and 18, and Case C-56/89 R Publishers Association v Commission [1989] ECR 1693, paragraphs 34 and 35; orders of the President of the Court of First Instance in Joined Cases T-24/92 R and T-28/92 R Langnese-Iglo and Schöller Lebensmittel v Commission [1992] ECR II-1839, paragraph 29; Case T-29/92 R SPO and Others v Commission [1992] ECR II-2161, paragraph 31; Case T-395/94 R Atlantic Container and Others v Commission [1995] ECR II-595, paragraph 55, and Case T-65/98 R Van den Bergh Foods v Commission [1998] ECR II-2641, paragraph 66).
94 In support of that claim, the applicant develops a line of argument structured around two assertions, first, that the immediate operation of the contested decision would adversely affect the indication-of-origin function and signal effect of the trade mark and, secondly, that the damage suffered would not be quantifiable.
- Adverse effect on the indication-of-origin function and the signal effect of the trade mark
95 The applicant states that, where the national market is shared, the indiscriminate designation of all packaging with the mark Der Grüne Punkt, as a consequence of the operation of the contested decision, will inevitably undermine the indication-of-origin function since the final consumer will no longer be able to know whether packaging carrying the mark Der Grüne Punkt is participating in DSD's system or that of a third party.
96 That adverse effect on the indication-of-origin function could lead to the cancellation of the trade mark Der Grüne Punkt, because it would lose its distinctive character and, in consequence, no longer be enforceable against third parties using that mark without having been granted a licence for the purpose. On this latter point, DSD states that it was able to defend itself against a competitor, Vfw, which clearly intended to make reference to its waste disposal services by using the similarity of name and image between the trade mark Der Grüne Pfeil and the trade mark Der Grüne Punkt only by means of an action for termination under Paragraph 14 of the Markengesetz. The operation of the contested decision would make it more difficult to bring actions for cancellation, prohibitory orders or damages, since the party against whom proceedings were brought could argue in its defence that the trade mark Der Grüne Punkt had lost its distinctive character.
97 The indiscriminate use of the mark would also have an irreversible adverse effect on the signal effect, since the final consumer would no longer ever be able to distinguish whether packaging carrying the mark Der Grüne Punkt should be disposed of in DSD's collection containers or those of a third party.
98 The confusion thus generated in the mind of final consumers would risk jeopardising the efficacy of the DSD system, as was stated by the Verwaltungsgerichtshof Kassel (Higher Administrative Court, Kassel) in an order of 20 August 1999, since it is strictly dependent on their cooperation. The adverse effect on the signal function would cause a drop in the recovery rates laid down by the Law, so that they could no longer be achieved. In that situation, the authorisation of the DSD system might be revoked (Paragraph 6(4) of the Ordinance). In that respect, DSD notes that the statutory recovery rate for composite materials, that is, 60%, was exceeded only by 5% in 2000. That risk of revocation of the authorisation of the system would be one of the essential differences between DSD and the self-management waste disposal solutions. Indeed, where the self-management waste disposal solutions do not achieve the statutory recovery rate, they need only obtain a licence subsequently from DSD (the ninth sentence of Paragraph 6(1) of the Ordinance).
99 Conversely, all the packaging collected by DSD should be recovered even beyond the rates imposed (the first sentence of point 1(5) of Annex I to Paragraph 6 of the Ordinance). Since as a general rule the costs of collecting near households exceed the income from the sale of the recycled products, it is important, according to the applicant, that those rates should not be exceeded to a large extent. The applicant has already faced that problem with regard to paper and cardboard, even though it is not yet subject to compulsory licensing.
100 It is therefore essential for DSD to continue to monitor the amounts collected in order that the recovery rates imposed should be achieved without, however, being greatly exceeded. DSD states that the only method of control consists in the cooperation of the final consumer, since the collection system which it has established throughout Germany cannot be altered.
101 DSD adds that the indication-of-origin function and the signal effect of the trade mark have already been affected by media coverage of the contested decision in Germany.
102 Furthermore, simultaneous participation in the DSD system and another dual system, such as that of Landbell in the Land of Hesse, or a self-management solution would have the inevitable effect of compromising the indication-of-origin function and the signal effect of the trade mark.
103 Noting that, in the first situation, authorisation of Landbell's dual system by the Land of Hesse authorities is imminent, DSD points out that a product collected by the Landbell system in that Land and, outside that Land, by the DSD system, will have to carry - at federal level and uniformly - the trade marks Der Grüne Punkt and Landbell-Baum (Landbell tree). The affixing of both those trade marks on the same product would inevitably create confusion in the mind of the consumer who lives in the Land of Hesse and of the consumer who lives outside it.
104 As regards the second situation - the self-management solution for taking back sales packaging bearing the mark Der Grüne Punkt - the applicant refers to the consequences of the contested decision. Thus, a chain of chemist shops has already called on its suppliers of branded goods, like Procter & Gamble or Glaxo SmithKline, carrying the logo Der Grüne Punkt, to have their packaging disposed of by a self-management waste disposal solution.
105 DSD takes the view that those manufacturers will act in that way in the short term, a fortiori because they are able for the first time to benefit from the two fundamental advantages of the trade mark Der Grüne Punkt, without participating in the DSD system. First, the special respect accorded to packaging to which the logo is affixed (judgment of the Landgericht Hamburg) constitutes a significant advantage for the manufacturers of branded goods. Secondly, manufacturers and distributors can work on the assumption that, owing to the signal effect of the trade mark Der Grüne Punkt, a significant number of consumers will not return the packaging to the shop because of the misleading marking, although the packaging ought to be disposed of by a group of undertakings participating in a self-management waste disposal solution near the shops. The accumulation of waste in the shop, which is undesirable for the manufacturers and distributors of branded goods, is thus avoided with the help of marking which is objectively false, misleading and in breach of the Ordinance.
106 Other distributors, such as Aldi, Tengelmann or Rewe, are on the point of following that example because of the attractive rates charged by the self-management waste disposal solutions.
107 The result is that, in the short term, consumers are going to be faced with the fact that they will be buying - as they have done up to now - goods carrying the mark Der Grüne Punkt in large retail chains, but will be informed, for the first time, in the shop, by means of clearly visible, legible notices, that the packaging must be returned to the shop. Indeed, the requirement to provide information under the third sentence of Paragraph 6(1) of the Ordinance also applies when packaging, although (incorrectly) labelled with the trade mark Der Grüne Punkt, is not covered by the DSD system and is to be disposed of by a group of undertakings participating in a self-management waste disposal solution. DSD considers that the contradictory information given to the consumer will in the short term lead to the complete dilution of the trade mark and will reduce its significance to merely indicating a collection option (recital 146 of the contested decision) with no indication-of-origin function or signal effect in respect of the disposal channel envisaged for specific packaging.
108 Finally, in implementation of Article 5(2) and (3) of the contested decision, DSD points out that it will not be able to request proof that the recovery rates have been achieved in one way or another, to use the terminology of the Minister for the Environment of the Land of Rhineland-Palatinate, for the quantities of packaging carrying the mark Der Grüne Punkt disposed of by a self-management solution, until 1 May in the year following the announcement that the said rates have been achieved. The arbitrariness to which DSD is thus exposed is also demonstrated by the first letters announcing departure from the system.
- Non-quantifiable nature of the damage
109 Immediate application of Article 3 of the contested decision would have serious and irreparable consequences, because it would not be possible to put a figure on the material and non-material damage suffered (Van den Bergh Foods v Commission, paragraph 65), in particular that relating to the destruction of the indication-of-origin function and the signal effect of the mark Der Grüne Punkt.
110 It would also be very difficult to establish that the loss of authorisation, owing to a drop in the collection results, would be the consequence of misleading marking and dilution of the trade mark.
Balance of interests
111 DSD considers that the Commission has no overriding interest in having the infringements established brought to an immediate end where the national market is shared.
112 Indeed, the rule stated in Article 4(1) of the Agreement has been laid down since 1991 and the Commission, which has been aware of it since the notification of 2 September 1992, issued a favourable opinion (see paragraph 29 above), a fact which should be taken into account when the competing interests are weighed up (Van den Bergh Foods v Commission, paragraph 69).
113 Furthermore, the contested decision raises difficult questions with regard to the scope of Article 82 EC, consideration of which is a matter for the Court when giving judgment on the substance of the case (order in RTE and Others v Commission, cited above, paragraph 14). Thus, in the press release on the contested decision, the Commission conceded that DSD could not easily assess, on the basis of previous decisions of the Commission or the European Court of Justice, the compatibility of its behaviour with the competition rules of the Treaty.
114 The contested decision is at variance with the judgment of 11 August 1998 of the chamber of the Oberlandesgericht, Düsseldorf, with jurisdiction in the field of agreements, decisions and concerted practices, in which a claim of infringement of the rule referred to by the Commission was expressly rejected on the ground that the payment scheme takes account of the legitimate interests of the parties to the Agreement. In such cases, the applicant's interest in suspension predominates as a matter of principle, in order to avoid a state of legal uncertainty until the outcome of the proceedings in the main action (Van den Bergh Foods v Commission, paragraph 74).
115 Finally, it would be acceptable for users of the logo Der Grüne Punkt to use the waste disposal services of DSD's competitors without using its trade mark. As for the public interest, that argues against the destruction of the trade mark, which is essential for meeting the objectives of the Ordinance, namely to prevent production of waste and to recover waste as well as to reduce the burden on the public waste disposal system.
Arguments of the Commission and the parties supporting it
Prima facie case
116 As a preliminary point, the Commission claims that the application for interim measures is essentially devoted to the alleged effects of the immediate operation of the contested decision on DSD's legal position as owner of the trade mark Der Grüne Punkt.
117 The Commission structures its argument into four points. It maintains, firstly, that the applicant's practice is not compatible with Article 82 EC, secondly, that the contested decision does not hinder the proper working of DSD's system, thirdly, that the contested decision does not restrict DSD's rights over the trade mark Der Grüne Punkt and, fourthly, that the alleged signal effect of the trade mark is unimportant.
118 In the first place, the Commission points out that it is the terms of the Agreement governing the licence fee which constitute the abuse. More specifically, the abuse consists in the fact that the applicant requires participants in its system to affix its logo to packaging which might use its exemption service while receiving a licence fee for all packaging carrying its logo, even if it is established that its services are not used for certain quantities of that packaging. The applicant is thereby abusing its dominant position by invoicing the undertakings subject to the Agreement for a service with which it does not provide them.
119 The applicant is also unlawfully obstructing the entry of competitors into the market, since by introducing the obligation to pay for all packaging bearing its logo it makes it financially uninteresting to use the services of competing companies for certain quantities of packaging: indeed, an undertaking subject to the Agreement either pays twice for those quantities of packaging or has to allow for different packaging and different distribution channels. In that case, it cannot benefit from the potential which a single type of packaging on a European scale represents on the national market.
120 Under Article 3 of the contested decision, DSD is prohibited from charging a licence fee in respect of the quantities of packaging for which the exemption service offered by the applicant is not used, even if that packaging bears the logo Der Grüne Punkt. That solution stems from the fee-charging terms established by the applicant. Given that it requires its participants to use the logo Der Grüne Punkt and that, in order to calculate the amount of the licence fee, it takes as a basis the extent to which the mark is used, any corrective measure must take account of the fact. The contested decision is even based on the Agreement which provides, in the second sentence of Article 4(1), that there may be exceptions to the requirement to pay a licence fee, even if the logo is used.
121 The existence of the abuse is demonstrated by the fact that an increase in distribution channels and packaging is not economically worthwhile in the situations to which the contested decision refers. The applicant's objection on that point is unfounded, since the examples it provides are not covered by the contested decision. Furthermore, such an increase would be absurd in the light of the objective of the Ordinance, because it would become impossible to monitor the use to which the final consumer puts one kind of packaging or the other.
122 The applicant itself concedes that, if packaging is uniform in design, selective marking is not possible. Accordingly, the supplementary agreement to the Agreement concerning the sales packaging of office goods contains the following observation:
Packaging bearing the trade mark "Der Grüne Punkt" is found in the possession of the private final consumer within the meaning of Paragraph 3(10) of the Ordinance [...] as well as of the specialised wholesale trade (particularly commercial centres specialising in office furniture, computer engineering companies, office machine specialists or office furniture shops) and of direct distributors. For technical and logistical reasons, it is impossible for a participant to arrange the marking and marketing of his packaging so as to ensure that the use of the trade mark corresponds, to the extent he would wish, to the place in which used packaging is deposited.
123 In the second place, the Commission disputes the applicant's statement that it is appropriate to link the licence fee to the amount of packaging carrying the mark and not to the amount of packaging actually collected, so that that rule does not constitute an abuse.
124 First of all, neither of the two arguments raised to substantiate the claim that it is impossible to implement the contested decision is persuasive.
125 As regards the first argument, that the current rule on marking avoids confusion, the Commission contends that the contested decision does not in any sense infringe the requirement of transparency established in the Ordinance. In that regard, the Commission, noting that the applicant's statement refers exclusively to the Group II cases of the said decision (namely, the existence of competing self-management solutions), points out that the polluter pays principle transposed by the Ordinance applies to quantities of packaging, not to specific packaging. The main thing is to furnish proof that certain quantities of packaging are subject to recycling. In order to substantiate its incorrect statement, that the obligation - which it assumes exists - to mark packaging stems from the Ordinance, the applicant cites misleading references from various documents relating to the applicable rules.
126 With regard to the second argument, relating to the criterion for invoicing the services, the Commission points out that the declared aim of the applicant's licence fee scheme is solely to cover the costs of operating the system (Article 5 of the Agreement). Now, in the specific cases referred to in the contested decision, the link between the service and the licence fee is already unbalanced for the simple reason that there is some packaging for which the applicant does not provide the exemption service but nevertheless receives a licence fee. The applicant does not put forward any convincing argument to explain why it cannot calculate the licence fee according to the amount of packaging for which its service of assuming the packaging disposal obligation is actually used.
127 The applicant claims only that the Commission requires invoicing based on the disposal service actually provided. That statement is incorrect, because the contested decision provides for invoicing based on the quantity of packaging for which the participant uses the exemption service. That quantity could easily be determined. Indeed, the undertaking subject to the Agreement should inform the applicant of the amount of packaging for which it wishes to use the exemption service. Practical reasons do not therefore justify invoicing according to the amount of packaging carrying the logo Der Grüne Punkt.
128 The Commission next submits that the observations regarding trade mark law, which are also made by the applicant for the purpose of showing that the licence fee scheme does not constitute an abuse, are not valid. The Commission points out that a trade mark serves to distinguish or individualise the origin of goods or services from a multitude of offers of the same kind and that, within the framework of that distinguishing role, a trade mark fulfils various subfunctions. Indeed, trade marks can be used to distinguish goods not only in respect of their origin (a distinguishing function with regard to commercial origin), but also of their quality inasmuch as they give the user an impression of consistent quality on which he may rely when making his purchases (function of providing a guarantee or of inspiring confidence in the trade mark). This latter function is crucial for collective marks, since it is impossible to determine with certainty the origin of the goods carrying that trade mark. Furthermore, the trade mark, almost irrespective of the goods concerned, may have its own power of appeal for the purchaser, because of its characteristics and renown (the trade mark's advertising function).
129 For the purpose of assessing a possible infringement of the rights of the owner of a trade mark, it is necessary to identify the specific aim of the protection in question. Community case-law, invoked by the applicant, guarantees protection of the trade mark's indication-of-origin function. In that regard, the Commission considers that that function is compromised if the consumer or final user mistakenly attributes the service he has obtained to the owner of the trade mark unlawfully affixed. On the other hand, the indication-of-origin function is not adversely affected if the final user of a service is not misled in any way.
130 In the present case, the service provided by DSD consists in releasing producers and distributors from having to comply individually with their packaging waste take-back and recovery obligations. The clauses relating to the use of the trade mark Der Grüne Punkt do not therefore concern the essential purpose of the Agreement. The Commission points out, in that respect, that the amount of the licence fee is determined solely according to the weight or quantity of the packaging covered by the Agreement. Licence fees are usually collected with a view to profit in exchange for a licence to use a non-material right and not in exchange for a service. Indeed, when payment is made for services, the fixing of the licence fee is not directly linked to the licence to use a trade mark. A licensing agreement which releases the participating undertaking from its take-back and recovery obligations under the Packaging Ordinance is therefore deflected from its normal purpose.
131 The Commission refutes the applicant's claims that the consequence of Article 3 of the contested decision is to impose compulsory licensing on it and to make worthless the indication-of-origin and guarantee function of its trade mark Der Grüne Punkt.
132 First, it considers that Article 3 of the contested decision does not impose on the applicant compulsory licensing contrary to Article 21 of TRIPs and the case-law of the Court of Justice. Indeed, the contested decision has no impact on the number of the applicant's licensees; only manufacturers and distributors who have concluded an agreement with the applicant will be able to affix the logo Der Grüne Punkt to their packaging. In any event, Articles 21 and 40(2) of TRIPs, read in conjunction, permit a balance to be sought between the interests of the owner of the trade mark and the public interest, which means competition free of distortion.
133 Furthermore, the Commission denies that Article 3 of the contested decision has the effect of requiring the applicant to grant a licence for no fee. Indeed, in consideration for permission to use a trade mark, the licensee pays a licence fee, the amount of which may be determined according to the number of products put into circulation, as a percentage of turnover or on the basis of similar criteria, which make it possible to assess the economic use which the licensee makes of the trade mark. That calculation may be made a priori or a posteriori. It follows that, under many calculation methods, account is not taken of all the goods carrying the trade mark in order to determine the amount of the licence fee.
134 Therefore, the applicant's claim that the decision would lead to a compulsory licence for no fee would be relevant only if the licence could be divided according to whether or not the packaging concerned is actually covered by the exemption system. It could only be so divided if it were possible to determine a priori which packaging is collected by the applicant's system and which is not. However, the consumer is the only person to decide on the fate of each piece of packaging, and it is only possible a posteriori to find out the actual use made of the packaging marketed.
135 Nor would it yet be possible to determine, as regards the grant of the licence, which packaging is actually collected by the applicant. The use or non-use of the applicant's collection service could be taken into consideration only at the stage of determining the amount of the licence fee. It cannot therefore be a matter of granting a licence for no fee for certain packaging: it could at most be considered that some of the packaging carrying the mark under licence is excluded from the calculation of the licence fee.
136 Secondly, with regard to the indication-of-origin function of the trade mark, the Commission considers that the applicant's view is too broad. DSD omits to state that the final users of the service it provides are not, in any case, the final consumers of the packaged product, but the manufacturers or distributors of the packaging, who are not misled at all. As to the misleading of the final consumers of goods on whose packaging the logo Der Grüne Punkt is featured, the applicant does not argue this point persuasively. In any event, the alleged misleading does not constitute an adverse effect on the indication-of-origin function of the trade mark Der Grüne Punkt. The impact of a trade mark is measured by the way in which it is perceived by the target group, in the present case the final consumers of consumer goods whose packaging they dispose of by means of various systems. For the average final consumer, the perception of the trade mark comes down to the indication that it is possible for the packaging to be disposed of by the DSD system.
137 That finding is based on the observed behaviour of consumers with regard to the disposal of waste, which can be verified on a daily basis, and also on the assessment of that behaviour by the applicant itself in its Rules for the Use of the Collective Mark, as regards the impact of the logo Der Grüne Punkt (paragraph 27 above). As for the sole question to which the contested decision relates, in the present case namely whether the participating undertakings have paid a licence fee in proportion to the amount of waste packaging collected from them, the consumer is certainly as concerned about that as about other details of the organisation of the system in question or of other systems.
138 Furthermore, assessments of the trade mark made by the various German courts, when read in their context, differ from the way they have been presented by the applicant.
139 As to the alleged effects on the guarantee or inspiration-of-confidence function of the trade mark, the Commission considers that the fact that in certain areas one method of waste packaging disposal is added to another does not prevent the consumer from disposing of the packaging carrying the trade mark in the collection containers installed by the applicant. The trade mark's guarantee function would be destroyed only if packaging covered by another system were not in any case disposed of by the applicant. However, for practical reasons, that is not the case. According to the Commission, the applicant will continue to dispose of all packaging carrying the logo Der Grüne Punkt if the consumer chooses that solution. For the consumer, the mark's guarantee function is therefore not altered.
140 Finally, the signal function of the trade mark Der Grüne Punkt is outside the scope of trade mark law.
Urgency
141 The Commission considers that the condition relating to urgency is not satisfied.
142 First of all, the Commission notes that the applicant does not answer the question concerning the precise nature of the damage it alleges. It is non-material damage stemming from the alleged deterioration of the trade mark's functions, and material damage due to the risk of loss of authorisation. The latter is wholly unfounded. A reduction in the quantities of packaging waste collected would result in less reliance on DSD's exemption services. Since the recovery rates to be achieved are determined according to the amount of packaging covered by its own system, the operation of the contested decision would not jeopardise the chances of achieving that rate.
143 The applicant's public statements contradict the claim that operation of the contested decision would lead to the irreversible destruction of its trade mark and would also endanger the overall functional efficacy of its system. Indeed, in a document entitled Hintergrundinformationen zur Auseinandersetzung zwischen der EU-Kommission und der Duales System Deutschland AG (Background information about the dispute between the European Commission and Duales System Deutschland AG) which was broadcast over the Internet and sent to its participants, the applicant states the following with regard to the consequences of the Decision:
The European Commission has confirmed that an unlimited right of remuneration was attached to all packaging bearing "Der Grüne Punkt" participating in the DSD system, and that, furthermore, that right was not be called in question. That affects in particular all packaging sold to final consumers, which represents, according to the estimates, over 85% of the packaging covered by the DSD system. Consequently, DSD's basic economic activity is safe.
144 The applicant's conviction shows that the trade mark cannot be of major importance to the operation of the system. In any event, it is incorrect to state that the logo Der Grüne Punkt is the applicant's only means of influencing the final consumer's behaviour concerning the disposal of packaging. That statement is not proved, any more than the applicant's other claims that the contested decision would have an impact on the amounts of packaging collected, and even that the response to the case in the media - not the Decision itself - has had the effect of shaking consumer confidence and thus weakening the trade mark.
145 As to the example chosen by the applicant, namely, the system provided by Landbell in the Land of Hesse, this would not cause the alleged problem of confusion in the mind of consumers owing to the affixing of two trade marks to the same product, if only because Landbell has and uses the same collection bins as the applicant. However, even outside the Land of Hesse, the Commission states that it does not understand why affixing an additional logo, which has practically no significance elsewhere, should create confusion. The Commission considers that it cannot be inferred from such a situation that the consumer will throw cardboard packaging into residual waste bins rather than into the paper and cardboard container. If the applicant's unsubstantiated statement were correct, any other logo used in addition to Der Grüne Punkt would risk weakening it. However, it is sufficient to look at any ordinary packaging to refute the alleged influence of a multiplicity of trade marks on consumer behaviour regarding waste disposal. There are ways of influencing that behaviour other than by using the logo, such as information documents like those distributed by town councils.
146 The Commission adds that the recovery rates achieved in each case do not necessarily reflect the collection rates, but simply an economic reality. Indeed, second-rate raw materials derived from composite materials can only be sold at a loss. In consequence, neither the applicant nor the collection undertakings have an interest in exceeding the recovery rate by a wide margin. On the other hand, market prices are positive for paper and cardboard. Thanks to the wording of the service agreements concluded with the collection undertakings, the applicant is not financially affected if the rates are exceeded because the payments made to those undertakings are limited. Since market prices are positive, the collection undertakings should not be financially penalised either.
147 In connection with its observations concerning urgency, the applicant repeated its claim that the operation of the contested decision would adversely affect its trade mark Der Grüne Punkt. It bases that claim on the fact that everyone may, freely and irrespective of whether he participates in its system, use the logo Der Grüne Punkt. However, that is not the case. It is clear, according to the Commission, that the trade mark cannot be used freely and that it can only be used in the clearly defined cases in which, where packaging is uniform, the applicant collects part of it and proof is required of collection of the remaining part. As has been pointed out, the applicant itself considers that the Decision will affect 15% of the packaging for which it has concluded agreements.
148 To the extent that the applicant argues, in connection with the condition relating to urgency, that there has been no abuse of a dominant position, the Commission refers to its arguments relating to the absence of a prima facie case.
149 The Commission concedes that use of the logo by persons who have not joined the applicant's system or to whom it has not granted a licence might adversely affect the trade mark. However, the contested decision would not lead to such use of the logo nor would it prevent the applicant, contrary to what it claims, from taking steps against any wrongful use.
150 As for the risk, mentioned by the applicant, of cancellation of the mark, it does not exist since the contested decision does not undermine either the indication-of-origin function as a specific right of protection, or the guarantee function of the trade mark. The message promoted by the trade mark would be unaltered.
151 The interveners consider that DSD will not suffer serious and irreparable damage if the operation of the contested decision is not suspended.
152 They share the Commission's assessment, relying on the document broadcast by the applicant on the Internet.
153 More specifically, Landbell points out that, in the immediate future, it will carry out its activities only in the Land of Hesse and that its appearance on the market will have a limited effect on competition. It states that the population of that Land represented some 7.31% of the population of the Federal Republic of Germany on 31 December 1999 and that the percentage of used sales packaging covered by its system does not exceed 10% of the total packaging waste.
154 For its part, BellandVision points out that take-back by means of a self-management solution is limited to a certain volume. Under Paragraph 6(1) of the Ordinance, packaging should in fact be taken back at the place of sale to the final consumer. That means that collection close to households - by means of yellow bins - is not possible. Collection by a self-management disposal system is thus limited to cases in which the take-back of packaging at the actual place of sale to the consumer is possible, which involves between 10% and 15% of the total volume of packaging.
155 Landbell and BellandVision also maintain that, furthermore, the contested decision will not involve a loss of profit for DSD.
156 Indeed, although a limited reduction in DSD's turnover may be one effect of competition, a loss of profit is, on the other hand, ruled out. DSD has, in fact, the contractual guarantee of receiving payment covering costs. It has even undertaken not to make any profit from its activities. Finally, a reduction in the quantities of packaging covered by DSD's system automatically leads to a reduction in payment of the undertakings responsible for disposing of the waste.
157 DSD's activity is not intended to make a profit. Under Article 4(3) of the Agreement, licence fees are calculated without a mark-up for profit. According to the wording of the Agreement, they are used only to cover the costs of collection, sorting and recovery and also administrative expenses (system costs). According to Article 4(3) of the Agreement, licence fees may, furthermore, be increased or reduced in such a way as to attribute the system costs to the different categories of materials, as far as possible, in accordance with liabilities.
158 Although as far as revenue is concerned DSD has a guaranteed cover for costs, as far as expenditure is concerned, each reduction in the quantities of packaging collected under the DSD system is reflected in a reduction in the payment made to the undertakings responsible for disposing of the waste. Under Article 7.3 of the service agreements concluded with the various undertakings responsible for waste disposal, the quantities of packaging to be collected and recovered outside the dual system must automatically be deducted from the amount for which payment is made. The success of DSD's competitors in canvassing for customers would thus automatically reduce the burden of costs for DSD by a corresponding amount.
159 Finally, Landbell and BellandVision point out that, if the action in the main proceedings is upheld, DSD will recover its monopoly of the market.
Balance of interests
160 The Commission disputes the reasons put forward by the applicant to establish that there is a higher interest in suspending the operation of the contested decision.
161 Firstly, in response to the argument that the licence fee scheme has existed since 1991, the Commission states that it has been making its concerns known in that regard since 1997.
162 Secondly, the applicant is not justified in invoking the success of its competitors, since they are only of minor commercial importance compared with itself. By contrast, the competitiveness of the self-management collection systems, which is already precarious, would be in jeopardy for, in the event of suspension, potential customers would remain loyal to the applicant because of the risk of double licence fees. As regards the first competing exemption system, its future depends on the operation of the contested decision.
163 Thirdly, the contested decision is not at variance with the judgment given by the Oberlandesgericht Düsseldorf. If it were, it is not specified in what respect that would justify suspension (Case C-344/98 Masterfoods and HB [2000] ECR I-11369, paragraphs 48 and 53). Furthermore, that judgment is not enforceable and concerns facts which are unconnected with the contested decision, namely the treatment of part of the packaging in the industry.
164 Vfw and BellandVision point out that the suspension of the operation of the contested decision would seriously compromise their competitive position since it would have the effect of maintaining the risk of double invoicing, as a result of payment for the services rendered to customers by each of the interveners and of the maintenance of the obligation to pay DSD merely for marking the packaging with the trade mark Der Grüne Punkt.
165 As for Landbell, the suspension of the immediate operation of the contested decision would prevent it from entering the market in question.
2. Assessment of the President of the Court
Prima facie case
166 The instruction contained in the first paragraph of Article 3 of the contested decision, the suspension of operation of which is requested in the main proceedings, is worded as follows:
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 "Der Grüne Punkt" 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.
167 Article 3 of the contested decision was adopted pursuant to Article 3(1) of Regulation No 17 (recital 161 of the contested decision). Under that provision, where the Commission finds that there is infringement, in particular of Article 82 EC, it may by decision require the undertakings concerned to bring such infringement to an end.
168 It is settled case-law that Article 3(1) of Regulation No 17 may be applied so as to include an order directed at bringing an end to certain activities, practices or situations which have been found to be unlawful (Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, paragraph 45, and RTE and ITP v Commission, cited above, paragraph 90), and also at prohibiting the adoption of similar conduct in the future (Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 220).
169 Furthermore, since Article 3(1) of Regulation No 17 must be applied according to the nature of the infringement found, the Commission has the power to specify the extent of the obligations incumbent on the undertakings concerned in order to bring an infringement to an end. Such obligations on the part of undertakings may not, however, exceed what is appropriate and necessary to achieve the desired aim, namely to restore compliance with the rules infringed (RTE and ITP v Commission, cited above, paragraph 93, and, to the same effect, Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533, paragraph 209, and Case T-9/93 Schöller v Commission [1995] ECR II-1611, paragraph 163).
170 In the present case, Article 1 of the contested decision must be interpreted in the light of the statement of reasons on which it is based (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 122), especially recital 163 of the contested decision according to which:
The infringements consist in the fact that, under the first sentence of Article 4(1) and the first sentence of Article 5(1) of the Trade Mark Agreement, DSD requires the payment of a licence fee for the total quantity of sales packaging carrying the trade mark "Der Grüne Punkt" which is put into circulation in Germany even when the exemption service referred to in Article 2 of the Agreement is used only for partial quantities or not at all. Although the second sentence of Article 4(1) of the Trade Mark Agreement allows derogations, DSD has refused to submit commitments for Groups I and II which would have put an end to the abusive situation and would have been implemented as derogations under the Agreement.
171 Underlying the finding of that infringement is the combined reading of the provisions of the Agreement stipulating, firstly, that manufacturers and/or distributors who participate in DSD's system are required to display the logo Der Grüne Punkt on sales packaging intended for national consumption (Article 3(1) of the Agreement) and, secondly, that the obligation to pay DSD arises merely from the fact of displaying the logo Der Grüne Punkt on the packaging (Article 4(1) of the Agreement), even when, for a specific part of their packaging, customers do not use DSD's exemption service.
172 Since DSD is the only undertaking operating an exemption system covering the whole of Germany, manufacturers and/or distributors would be obliged to use that system. In consequence, they would also be obliged to display the logo Der Grüne Punkt on all their packaging. Furthermore, economic and technical reasons and reasons connected with the logistics of distribution would prevent manufacturers and/or distributors who wished to use the services of another exemption system, if there were one, or those of a self-management solution for part of their packaging from displaying the logo Der Grüne Punkt only on that part intended for collection by the operator of the DSD system.
173 Since the obligation to pay DSD arises merely from the marking of the sales packaging and not from the exemption service actually rendered, manufacturers and/or distributors would be required to pay two licence fees if they participated simultaneously in the DSD system and a self-management solution or a competing exemption system, if there were one.
174 The applicant, as it expressly indicated in its application, denies the very existence of the abuse of a dominant position of which it is accused, even if its application does not seek suspension of the operation of Article 1 of the contested decision.
175 It is therefore necessary to examine the lawfulness of the obligations which Article 3 of the contested decision imposes on the applicant in the light of the finding of abuse of a dominant position. For that purpose it is necessary first to define the extent of the obligations in question.
176 It is apparent from the wording of Article 3 of the contested decision that, firstly, manufacturers or distributors who are parties to the Agreement are to display the logo Der Grüne Punkt on all their sales packaging; secondly, those manufacturers or distributors may use a self-management solution or an exemption system which is a competitor of the system established by DSD in order to dispose of their sales packaging; and, thirdly, the licence fee collected by DSD must correspond to the services it actually provides. It follows that Article 3 of the contested decision has the effect, in particular, of allowing participants in DSD's system to display the logo Der Grüne Punkt on their sales packaging even though that packaging will not be disposed of by the DSD system.
177 That possibility of displaying the logo Der Grüne Punkt on sales packaging which will not be collected by DSD's system and for which no licence fee will be paid to the applicant crystallises the applicant's objection: DSD's argument is, essentially, that the licence fee scheme is justified by considerations relating to trade mark law, so that the abuse with which it is charged is not made out. If there is no abuse of a dominant position, Article 3 of the contested decision is unfounded. More specifically, the applicant considers that to allow the indiscriminate display of the trade mark Der Grüne Punkt would compromise the indication-of-origin function and the signal effect of that trade mark and the requirement laid down by the Ordinance that packaging is to be clearly identified. The contested decision would therefore have the effect of preventing the final consumer from knowing whether packaging carrying the trade mark Der Grüne Punkt is covered by DSD's disposal system or that of a third party and, therefore, whether that packaging should be disposed of in DSD's containers or in those of a third party.
178 The Commission, for its part, considers that the contested decision does not in any sense undermine the trade mark's indication-of-origin function, since the sole aim of that function is to inform the final consumer that he may dispose of sales packaging carrying the mark Der Grüne Punkt by means of DSD's system. Since there is no justification for the licence fee scheme, the abuse is made out and should be brought to an end.
179 In the light of the arguments of the parties taken as a whole, the President of the Court considers that this case raises mainly the question whether the licensing scheme imposed by the owner of the trade mark right is justified by the need to preserve the specific subject-matter of that right or, to put it another way, whether, in the circumstances of the present case, the trade mark right is used by DSD as a means of abusing its dominant position. It is therefore necessary to assess whether the Commission has established that the applicant's conduct is not in accordance with the principle of proportionality.
180 Therefore, only if it is proved that the provisions of the Agreement to which the Commission objects go beyond what is necessary to preserve the essential function of the trade mark right may it be held to be established that DSD has abused its dominant position vis-à-vis the participants in its scheme.
181 In that regard, it should be noted, first of all, that Article 295 EC provides that [t]his Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.
182 Furthermore, since a trade mark right is exclusive, its owner is entitled to grant, or to refuse to grant, authorisation to a third party to exercise that right and, in the former case, to authorise its use in exchange for the payment of a licence fee. The owner of an intellectual property right therefore has the power to restrict competition in order to protect the very substance of his exclusive right. Thus, in the Volvo judgment, cited above, the Court of Justice held (paragraph 8 of the grounds) that the refusal of a car manufacturer to grant licences to third parties wishing to compete with it in the manufacture and sale of protected car body panels cannot in itself constitute an abuse of a dominant position. A different interpretation would have undermined the specific subject-matter of the intellectual property right in question.
183 Trade mark rights are, it should also be noted, an essential element in the system of undistorted competition which the Treaty seeks to establish and maintain (Case C-10/89 Hag GF (Hag II) [1990] ECR I-3711, paragraph 13). In such a system, undertakings must be able to attract and retain customers by the quality of their products or services, which is made possible only by distinctive signs allowing them to be identified (Case C-349/95 Loendersloot [1997] ECR I-6227, paragraph 22).
184 From that point of view, the essential function of the trade mark is to guarantee the identity of the origin of the marked product to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin (see, in particular, Case 102/77 Hoffmann-La Roche [1978] ECR 1139, paragraph 7; Case 3/78 Centrafarm [1978] ECR 1823, paragraphs 11 and 12, and Case C-39/97 Canon [1998] ECR I-5507, paragraph 28).
185 However, the question whether the contractual terms which DSD imposes on the participants in its system, when use of the logo Der Grüne Punkt does not coincide with the actual use of its exemption service, are essential to protect the essential function of the trade mark Der Grüne Punkt, as the applicant claims, or abusive, in that they are unfair within the meaning of Article 82, second paragraph, (a) EC, as the Commission maintains (recitals 111 to 113 of the contested decision), is a complex matter. It makes it necessary, in particular, to determine whether the sales packaging carrying that trade mark is actually, in the mind of the final consumer, linked to the packaging waste disposal service established by DSD. The in-depth analysis needed to resolve those questions cannot, however, be carried out by the judge hearing the application for interim measures in an examination of the merits, prima facie, of the action in the main proceedings.
186 In the light of the above, it cannot be considered that the pleas of fact and of law raised by the applicant are prima facie wholly unfounded.
Urgency and the balance of interests
187 It is apparent from settled case-law that the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order in order to prevent serious and irreparable damage to the party applying for those measures. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage of that kind (order of the President of the Court of First Instance in Case T-73/98 R Prayon-Rupel v Commission [1998] ECR II-2769, paragraph 36, and order of the President of the Court of Justice in Case C-278/00 R Greece v Commission [2000] ECR I-8787, paragraph 14).
188 It is not necessary for the imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage - especially if its occurrence depends on a series of factors - is foreseeable with a sufficient degree of probability (order in Commission v Atlantic Container Line and Others, cited above, paragraph 38, and order of the President of the Court of First Instance in Case T-237/99 R BP Nederland and Others v Commission [2000] ECR II-3849, paragraph 49). However, the applicant is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the President of the Court of Justice in Case C-335/99 P(R) HFB and Others v Commission [1999] ECR I-8705, paragraph 67).
189 In the present case, the effect of the immediate operation of Article 3 of the contested decision is that the participants in DSD's system are no longer required to pay it a licence fee in respect of the quantities of sales packaging placed on the market in Germany with the logo Der Grüne Punkt for which the service providing exemption from the waste take-back and recovery obligations imposed by the Ordinance is not used and for which the obligations are fulfilled in another way.
190 According to the applicant, if suspension is not granted, its trade mark will be seriously and irreversibly affected and, as a consequence, the exemption system which it has established will be jeopardised. The applicant also maintains that the damage suffered is not quantifiable and is therefore irreparable.
191 However, in the present case, no proof has been adduced that DSD's system would be affected. Indeed, none of the arguments put forward in support of that assertion has been established to the requisite legal standard.
192 Firstly, it cannot be concluded, as does the applicant, that the risk of cancellation of the trade mark Der Grüne Punkt, linked to the loss of the distinctive nature of that trade mark, is sufficiently certain. Indeed, whether such a risk materialises depends on a number of factors and, in particular, on the intensity of the competition which DSD will face on the market to organise the take-back and recovery of used sales packaging collected from private consumers in Germany. At this stage, that damage is therefore hypothetical. Furthermore, the judge hearing the application for interim measures cannot substitute his assessment for that of the competent national authorities in order to determine, on the basis of the applicable national law alone, whether the conditions for cancellation of the collective mark are or will be satisfied.
193 Secondly, according to DSD, there is a risk that it will irreversibly lose its right to the trade mark. It would no longer be able to defend itself in the trade mark sector against other undertakings using the trade mark Der Grüne Punkt without having been granted licences.
194 In that regard, it should be pointed out that the operation of the contested decision cannot have the effect stated, since the Commission does not at all dispute that only those who have concluded the agreement with DSD are entitled to affix the trade mark Der Grüne Punkt to their sales packaging. It follows that the contested decision does not allow manufacturers or distributers who are not participants in DSD's system to use the logo Der Grüne Punkt.
195 Furthermore, the applicant does not show in what respect the contested decision would deprive it of its right to bring a legal action for termination of the use of its trade mark by a third party which had not concluded an agreement with it.
196 Thirdly, the indiscriminate use of the mark on sales packaging would have an irreversible adverse effect on the signal effect, since the end user would no longer ever be able to distinguish whether packaging carrying the mark Der Grüne Punkt should be disposed of in DSD's collection containers or those of a third party. The adverse effect on the signal effect would have a negative impact on the recovery rates imposed by the Ordinance, so that they might no longer be achieved. In that situation, the authorisation of DSD's system might be revoked (Paragraph 6(4) of the Ordinance).
197 Monitoring the quantities of packaging waste collected, which depend on the cooperation of the final consumer, would be essential if the recovery rates imposed were to be achieved without, however, being exceeded by a wide margin.
198 The applicant adds that the indication-of-origin function and the signal effect of the trade mark have already been affected by the media coverage of the contested decision in Germany.
199 Furthermore, simultaneous participation in the DSD system and in another dual system, such as that of Landbell in the Land of Hesse, or a self-management system, would have the inevitable effect of undermining the indication-of-origin function and the signal effect of the mark.
200 First of all, it should be noted that the urgency in granting an interim measure must result from the effects produced by the contested measure (see, in particular, the order in Free Trade Foods v Commission, cited above, paragraph 59). Therefore, the response to the contested decision from the German press and the possible harmful consequences of that for the applicant are irrelevant for the purposes of this assessment.
201 Also, the damage alleged is not substantiated by the applicant to the degree required to establish urgency. It has not been proved that the consumer will be affected by the contested decision in such a way that, before judgment is given in the main proceedings, he is no longer in a position to know in which collection container the packaging should be left. In that regard, the two groups of cases referred to in the contested decision must be examined in turn.
202 To the extent that a product carrying the logo Der Grüne Punkt is collected by a self-management system, the distributor must, according to the Ordinance, inform the consumer that the packaging will be taken back at, or in the immediate vicinity of, the point of sale by means of clearly visible, legible notices (third sentence of Paragraph 6(1) of the Ordinance). On that point, DSD states that such information about the taking-back of sales packaging carrying the logo Der Grüne Punkt is likely to create confusion in the mind of the consumer. Such a statement is not enough to prove the fact alleged. Indeed, there is nothing to say that the information clearly indicated on the notices will not be understood or followed by the consumer. It might equally well be maintained that, conversely, the information given in the shop that packaging carrying the logo Der Grüne Punkt can be taken back at the point of sale or in the immediate vicinity is conclusive, since it is always in the distributor's interest for the information which he is legally bound to give the consumer to be decisive.
203 In so far as the packaging carrying the logo Der Grüne Punkt is to be collected by another exemption system, the applicant's claims are wholly unpersuasive. In that regard, it should be pointed out that the risk of confusion in the mind of the consumer is, at this stage, non-existent, since no competing exemption system is operating at the moment. As was pointed out at the hearing, Landbell's exemption system, whose territorial cover is restricted to the Land of Hesse, has not yet been approved by the competent authorities under Paragraph 6(3) of the Ordinance. Also, the applicant's assertion that the affixing of two trade marks to the same product will create confusion in the mind of consumers in the Land of Hesse since they [may] not realise that that packaging which also carries the trade mark "Der Grüne Punkt" is not participating in the DSD system and should not, therefore, be put into DSD's collection containers (loss of the trade mark's negative appeal function) (point 88 of the application) has no factual basis. On that point, the Commission, supported by the interveners, clearly stated that the coexistence of two exemption systems in the same commune is perfectly conceivable. They maintained, without being contradicted by the applicant, that in such a situation there could be a single collection network for both exemption systems - the same collection company would then act on behalf of its principals - and that the packaging carrying the trade mark Der Grüne Punkt and the sign of the other exemption system would therefore be disposed of in the same bins or containers. This latter circumstance is likely to eradicate, for the consumer in the Land of Hesse, the risk of any hesitation when disposing of waste. The Commission, in its observations, and the intervener Vfw, at the hearing, pointed out that there is even less risk of hesitation because the act of disposal depends essentially on the material in question, which is confirmed by the large number of containers which do not carry the logo Der Grüne Punkt but only information about the kind of material which should be deposited in them.
204 With regard to the alleged confusion in the mind of consumers living outside the Land of Hesse, the applicant maintains that they will not know whether packaging carrying (as well as the trade mark "Der Grüne Punkt") another mark - with which they are unfamiliar - (Landbell-Baum) is participating in the DSD system and should therefore be put into DSD's collection containers (not into those for residual waste) (point 88 of the application). It is sufficient to point out that consumers living outside the Land of Hesse will not be able to have any doubt that packaging bearing the logo Der Grüne Punkt should be disposed of in a container covered by the DSD system, since the competing exemption system, once it has been approved, will not provide the exemption service outside the Land in question, at least for the present.
205 Since the alleged confusion has not been adequately substantiated, there is no need to assess the impact of that confusion on the recovery rate per material, with which DSD has to comply. However, two observations should be made. Firstly, the consumers' cooperation, on which the functioning of the exemption system depends, may be obtained not only by affixing the logo Der Grüne Punkt on sales packaging, but also by other means such as disseminating targeted information designed to appeal to them. Secondly, DSD's compliance with the recovery rates is verifiable for packaging emanating from manufacturers or distributors who participate in its system (point 1(1) of Annex I to Paragraph 6 of the Ordinance), so that the consequence of their participation in that system in respect of a lesser quantity of their packaging is that the recovery rate with which DSD must comply will be assessed in the light of that quantity alone.
206 Fourthly, the applicant maintains that, if the operation of the contested decision is not suspended, it will face decisions taken arbitrarily by the participants in its system, since they would be free to decide the amount of packaging to be collected by its system.
207 However, the obligations which the Ordinance imposes on manufacturers or distributors who wish to organise, pursuant to Paragraph 6(1) and/or (2) of the Ordinance, the take-back and recovery of part of their sales packaging prevent the conclusion that DSD is put in the position of legal uncertainty which it describes. Indeed, a manufacturer or distributor who decides to limit his use of the exemption service to a certain percentage of those products is required, under Paragraph 6(1) and/or (2) of the Ordinance, to arrange take-back and recovery for the remaining percentage. In that situation, a particular obligation is imposed on those intervening in the distribution chain and, in fine, on the vendor who is required to point out, by appropriate labelling, that the product will be taken back at the place of delivery. It is for the producer to impose the contractual requirement on its distributors to take back sales packaging. Furthermore, a manufacturer or distributor who organises the take-back and recovery of packaging is required to comply with the recovery rates, since non-compliance is sanctioned by the legal requirement to use an exemption system (ninth sentence of Paragraph 6(1) and last sentence of Paragraph 6(2) of the Ordinance).
208 Finally, to the extent that the applicant's argument may be understood to mean that there is a risk of abuse on the part of the participants in its system, since their packaging would continue to be collected by its system beyond the agreed percentage, it must be pointed out that, in spite of the legal obligation to comply with the recovery rates imposed on manufacturers and distributors arranging for collection of their packaging pursuant to Paragraph 6(1) and (2) of the Ordinance, it is likely that DSD will actually have to collect and dispose of a surplus amount of sales packaging. None the less, it cannot be inferred from that that the collection and disposal service provided by DSD for that surplus will not be remunerated.
209 Indeed, non-compliance with recovery rates by manufacturers and distributors arranging for collection of their packaging pursuant to Paragraph 6(1) and (2) of the Ordinance has as a consequence, in the current state of competition on the market, that the quantity of packaging which they have not collected has been collected under the DSD system. It is apparent from point 3(5) of Annex I to Paragraph 6 of the Ordinance that [a]n operator of an [exemption] system may invoice manufacturers and distributors who do not participate in the system for the costs of sorting, recovery and disposal of the waste which they have put on the market and which is disposed of by the system. Furthermore, the contested decision provides that a participant in DSD's system may be required to provide, at DSD's request, proof that it is actually using DSD's services only for the percentage stated (recital 167 and Article 5 of the operative part). If proof is not adduced that the obligations imposed by the Ordinance are fulfilled in another way for the sales packaging placed on the market in Germany with the logo Der Grüne Punkt, for which the applicant's services are not used, it would be reasonable for the undertaking concerned to pay the financial consideration due to DSD. Finally, an additional means of checking that the participant in the DSD system does not use DSD's services beyond the agreed percentage is expressly provided for in the Agreement, Article 8 of which, entitled Opportunities for monitoring by Duales System, provides, in paragraphs 1 and 2:
(1) If Duales System has reasonable doubt as to whether the information provided or payments made by the user of the logo are correct or complete, it may, after prior agreement regarding the date, have the returns and payments made by the user of the logo during the statement period of the two previous years inspected by an auditor, a certified chartered accountant or a tax consultant, authorised and subject to the duty of discretion and confidentiality. The agent is also authorised to carry out an inspection in accordance with the following provisions if the user of the logo has not made a return or payment.
(2) Duales System's agent is authorised to enter the premises of the user of the logo and to consult all the relevant documents. The user of the logo must require its employees to furnish the agent with correct and complete replies. The user of the logo must put the agent in touch with the appropriate people.
210 At the hearing, DSD also claimed that, if suspension is not granted, its situation will deteriorate due to the conjunction of two factors, namely the reduction in licence fees and the retention of high fixed costs made up of the payment of the collection companies for the services they provide, even if the waste collected is not covered by its disposal system.
211 However, it is necessary to point out, with regard to the first part of that claim, that the extent of the reduction in licence fees depends on the intensity of the competition which the self-management systems and other possible exemption systems give DSD on the market concerned, which is not currently foreseeable with a sufficient degree of certainty. As regards the second part of the claim, the fact remains that the applicant has not provided any credible evidence and that, at the hearing, the interveners claimed, without being contradicted by the applicant, that the provisions in the service agreements concluded between DSD and the service providers concerned stipulate that the payments made to them may be amended if changes are ascertained in the quantities of waste collected.
212 In the light of the above, it must be held that the conditions for materialisation of the damage relating to the undermining of the functioning of DSD's system are not adequately substantiated. Although they must be interpreted in the light of the aims pursued, the applicant's public statements relating to the effects of the contested decision (paragraph 143 above) support that conclusion.
213 Lastly, it must be pointed out that, if the application on the substance were allowed, DSD would again be in the position which it occupied on the market before the contested decision was adopted. It cannot therefore be considered that the situation created on the market by that decision is irreversible.
214 Furthermore, the reduction in licence fees which might be the consequence of the operation of the contested decision - and which has been held to be inadequately substantiated - is damage of a pecuniary nature. Such damage cannot, save in exceptional circumstances, be regarded as irreparable or even as reparable only with difficulty, since it can be the subject of subsequent financial compensation (orders of the President of the Court of Justice in Case C-213/91 R Abertal and Others v Commission [1991] ECR I-5109, paragraph 24, and Case C-471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I-2865, paragraph 113; order of the President of the Court of First Instance in Case T-339/00 R Bactria Industriehygiene-Service v Commission [2001] ECR II-1721, paragraph 94). In accordance with those principles, an interim measure would be justified if it appeared that, if it were not granted, the applicant would be put in a position likely to jeopardise its existence before a final judgment was given in the main proceedings (see, in particular, order of the President of the Court of First Instance in Case T-53/01 R Poste Italiane v Commission [2001] ECR II-1479, paragraph 120). In the present case, the applicant has not managed to show that the adverse effect on its financial situation would be such that it would be unable to pursue its activity until final judgment in the main proceedings. In that context, it should also be pointed out that, according to its statutes, DSD has the sole aim of achieving the national objectives designed to avoid and reduce waste and must not distribute profits, which is supported by the first indent of Article 4(3) of the Agreement (paragraph 25 above). Finally, it must be added that the pecuniary damage consisting of the reduction in the licence fees could be quantified by calculating the difference between the amount of the fees owing to DSD for all the sales packaging carrying the logo Der Grüne Punkt placed on the market in Germany during the period from the date of adoption of the contested decision to any judgment annulling that decision and the amount of the licence fees actually received by DSD, in accordance with the contested decision, during the same period.
215 It follows from the above that the applicant has not managed to prove that, if the measure requested were not granted, it would suffer serious and irreparable damage.
216 In any event, even if the alleged damage could constitute serious and irreparable damage, the balancing of, on the one hand, the applicant's interest in obtaining the interim measure sought and, on the other, the public interest in the operation of a Commission decision adopted under Article 82 EC and the interests of the interveners, which would be directly affected by any suspension of the contested decision, results in the rejection of this application.
217 Admittedly, it was not easy to assess the compatibility of DSD's conduct with the provisions of Article 82 EC, as the Commission conceded in the press release of 20 April 2001 regarding the contested decision and as the President of the Court himself has previously stated. That difficulty of assessment is undeniably confirmed by the favourable attitude with which the Commission had initially viewed the Agreement, stating in a notice pursuant to Article 19(3) of Regulation No 17 its intention to give a favourable opinion on the agreements which had been notified to it by DSD (paragraph 29 above).
218 On the other hand, it is pointless for the applicant to invoke the order in Van Den Bergh Foods v Commission, cited above, in which the President of the Court took into account the general principle of legal certainty in order to restrict as far as possible a contradiction in the application of the Treaty's competition rules by the national court and by the Commission. Indeed, even if the judgment of the Oberlandesgericht Düsseldorf of 11 August 1998, invoked by the applicant, and the contested decision relate to identical facts, which the Commission disputes, the Court of Justice has ruled that, in order to fulfil the role assigned to it by the Treaty, the Commission cannot be bound by a decision given by a national court in application of Articles 81(1) EC and 82 EC (Masterfoods and HB, cited above, paragraph 48).
219 As regards the alleged adverse effect of the contested decision on the trade mark right, that effect, in the present case, does not consist in the obligation to grant licences to use the trade mark Der Grüne Punkt to DSD's competitors on the relevant market, but in the affixing of that trade mark to the sales packaging of the undertakings which have concluded an agreement with DSD and which, in spite of that, might not use its exemption services.
220 In those very particular circumstances, the public interest in respect for the right to property in general and intellectual property rights in particular, as expressed in Articles 30 EC and 295 EC, cannot prevail over the Commission's interest in bringing an immediate end to the infringement of Article 82 EC which it considers it has established and, accordingly, in introducing favourable conditions for the entry of DSD's competitors into the market concerned.
221 With regard to this latter point, it is necessary to point out that the competition between the self-management systems - in which Vfw and BellandVision, which is responsible for the disposal service as operations auxiliary for the purpose of Paragraph 11 of the Ordinance, have a direct interest - and DSD's system is limited. Indeed, in the case of self-management systems, the recovery rates imposed by the Ordinance can be achieved only by taking back packaging at the point of sale or in the immediate vicinity, a fact which was confirmed on 20 August 1999 by the Verwaltungsgerichtshof Kassel.
222 Also, it must be stated that there is currently no competition at all between exemption systems. As for the appearance of a second dual system (Landbell's), whose authorisation is imminent, that depends largely on the operation of the contested decision.
223 Finally, selective marking of packaging depending on its destination, consisting in affixing the trade mark Der Grüne Punkt to certain packaging of a product and not to other packaging of the same product, seems not always to be possible, as is evidenced by at least one agreement concluded between DSD and one of its participating undertakings (paragraph 122 above).
224 Since the condition relating to urgency has not been fulfilled and the balance of interests leans in favour of not granting suspension of the contested decision, this application must be dismissed.
Operative partOn those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
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