Recently the ECJ confirmed the decision of the European Commission ("Commission") of 20 April 2001 finding that Duales System Deutschland GmbH ("DSD"), the creator of the "Green Dot" (Der Grüne Punkt) trade mark, had restricted competition by abusing its dominant position in the market for organising the collection and recycling of sales packaging in Germany before 2001. DSD, which still enjoys a dominant position in the market, appealed the Commission's decision to the CFI. The CFI, in its judgment of 24 May 2007, rejected this appeal and confirmed the Commission's reasoning (see Community Week Issue 325).
DSD appealed the CFI's decision based on the following reasons, all of which were all dismissed by the ECJ:
- DSD argued that the CFI's findings relating to its abuse under Article 82 were vitiated by error of law or fact. The ECJ rejected this argument and confirmed that DSD abused its dominant position by requiring its customers to pay a licence fee for all packages designated with the Green Dot logo irrespective of whether the customers fulfilled their obligations under the German Packaging Ordinance through DSD or through competing systems. The ECJ also confirmed that the Commission had the power to order DSD to bring the infringement to an end and to order DSD to stop charging a licence fee for quantities of packaging put into circulation in Germany carrying the DGP logo for which the exemption service is not used and for which the obligations imposed by the German Packaging Ordinance have demonstrably been fulfilled in another way.
- DSD stated that the CFI had infringed trade mark law by finding that the Green Dot logo could not be granted exclusivity. DSD argued that the Green Dot logo should only be used for packages that were disposed of by DSD. The ECJ rejected this arguing that the use of the Green dot logo by manufactures and distributors whose packaging is not taken back by DSD is attributable to DSD. DSD itself set up a system which requires that the DGP logo be affixed to all packaging even where some of the packaging is not recovered by the DSD system.
- DSD contended that the CFI had breached the principle of proportionality. They argued that the CFI and the Commission had interfered disproportionally with its rights as they prevented DSD from requiring its customers to affix the Green Dot to packaging even when it is not processed by the DSD system. This notice effectively neutralised the distinctive effect of that logo. The ECJ rejected this argument as it is not possible to determine in advance what route will be taken by an item of packaging. It is therefore not possible, at the time at which a product bearing the packaging is packaged or sold, to distinguish products bearing the DGP logo and actually processed by the DSD system and those which bear the same logo but which will be processed by another system.
- DSD asserted that the CFI had failed to hear the case within a reasonable period of time as the proceedings before the CFI lasted for nearly six years. The ECJ agreed that the length of the case could not be justified by any particular circumstances but refused to set aside the judgment on that basis. The ECJ argued that the length of the proceedings had no effect on the outcome of the dispute. In addition, it highlighted the importance of the Community competition law. An appellant could not be allowed to reopen the question of the existence of an infringement, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the CFI concerning that infringement and the administrative procedure relating to it had been rejected as unfounded. The failure on the part of the CFI to adjudicate within a reasonable time could only give rise to a claim for damages brought against the Community.
- DSD considered that the CFI had infringed its duty to state reasons and had distorted evidence. The ECJ rejected these arguments.
SJ Berwin LLP advised two German waste management companies (Landbell AG and BellandVision GmbH) in these proceedings and in the proceedings before the Commission.
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