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OC - from a video i. They claimed that the Trade Mark Agreement prevented the setting up of a self-management solution for taking back packaging. They considered that the use of the logo, where the waste processing service has not actually been provided by DSD, constituted an abuse of a dominant position on the part of DSD.
The first concerned the case where manufacturers and distributors of packaging opted for a self-management solution for some of their packaging and participated in the DSD system for the remainder. In that case, DSD undertook not to charge a fee under the Trade Mark Agreement for the part of the packaging taken back by the self-management solution, on condition that it was provided with evidence in respect of the latter type of collection.
The decision also notes, at recital 23, that it was clear from a reply of the German authorities that the Packaging Ordinance does not mean that the establishment of only one system is possible.
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The investigation carried out by the Commission led to the conclusion that the method of calculation of the fee paid to DSD constitutes an obstacle to the desire of certain packaging manufacturers who are customers of the DSD system to be able to make use of their own self-management solution or of another exemption system in respect of some of the packaging put into circulation by them. Such a solution would require selective labelling of packages with, or without, the DGP logo , which would lead to considerable additional costs.
In addition, such a solution would require packaging manufacturers and distributors using mixed systems to ensure that packaging carrying the DGP logo was disposed of at outlets where it would be collected by the DSD system and that packaging without that logo was disposed of at outlets where it would be collected by other systems, something which would be impossible in practice.
Lastly, having regard to the fact that often it is only after having bought the packaged product, or sometimes after using it, that the final consumer will decide whether to dispose of the packaging in an exemption system close to his home or to bring it back to the place where he bought it in order to deposit it in a self-management solution, it would be impossible to determine correctly whether sub-quantities should be marked with the DGP logo or not. First, by making the licence fee dependent solely on the use of the DGP logo, DSD imposes unreasonable prices and unfair commercial terms on undertakings which do not use its service or which use it in respect of only some of their packaging.
The excessive difference between the cost of supplying the service and the price charged gives rise to the exploitative abuse of a dominant position within the meaning of point a of the second paragraph of Article 82 EC. Secondly, given the fee system laid down by the Trade Mark Agreement, it is of no interest to undertakings subject to the collection and recovery obligation to participate in a competing self-management solution or a competing exemption system, because those undertakings would either have to pay a licence fee to DSD in addition to the remuneration paid to the competitor, or to establish separate packaging and distribution channels.
The fee system thus makes it more difficult for competitors of the DSD system to enter the market.
In that regard, the decision at issue states that the essential function of the logo is fulfilled when it signals to the consumer that he has the option of having the packaging processed by DSD. The measure in question is laid down in Article 3 of the decision at issue, which provides:. The commitment in the first paragraph shall replace a derogation under the second sentence of Article 4 1 of the Trade Mark Agreement.
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The certificate may be issued either to the individual manufacturer or distributor or to an association of self-managers. 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.
In the case of packaging which is collected and recovered in another Member State under a system using the [DGP logo] and which is put into circulation using the [logo] 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 …. The proceedings before the Court of First Instance and the judgment under appeal.
Those undertakings, which are competitors of DSD, submitted their observations on 7 February The parties were notified of the end of the written procedure on 9 September By way of measures of organisation of procedure, it sent the parties a number of questions, to be replied to orally at the hearing. Those questions related to the different stages of the process for collecting and recovering packaging and to the conditions in which competition between self-management solutions and exemption systems might exist.
The Court also invited the Commission to produce a document provided by the German authorities during the administrative procedure.
Prof. Dr. Lars Grüne
On 26 June , the Commission lodged that document. It ordered Vfw, which had not applied for DSD to bear the costs, to bear its own costs, including those relating to the interlocutory proceedings. It is therefore possible for a manufacturer or distributor of packaging to use mixed systems in order to comply with the recovery rates laid down in the [Packaging Ordinance].
Such indications may be cumulative and the same piece of packaging may thus be covered by several systems at the same time. It is with that in mind that the Commission rightly interprets the transparency requirement defined by the German authorities in their observations, namely that it is necessary to clearly define, in the interests of the consumer and of the authorities, which packaging is subject to the take-back obligation at or in the immediate vicinity of the points of sale and which is not. Articles 3 and 4 of that decision are disproportionate, because they oblige DSD to grant third parties a licence.
Such a possibility offered to the consumer for all the packaging put into circulation with the [DGP logo], whether part of the DSD system or not, after checking the quantities collected, is likely to have a price which, even if it cannot represent the actual price of the collection and recovery service, as could be the case under the provisions in dispute of the Trade Mark Agreement, should be able to be paid to DSD in consideration for the service offered in the present case, namely the making available of its system.
By order of 21 February , the President of the Court granted leave to intervene. The findings of the Court of First Instance are thus manifestly contradictory. Consequently, the decision at issue and the judgment under appeal do not concern a fee for the use of the DGP mark. There is nothing in paragraph of the judgment under appeal which relates to the findings of the Court of First Instance concerning the abuse of a dominant position.
It concerns only the question whether the mere affixing of the DGP logo to packaging may have a price, even where DSD does not provide any service for the processing of that packaging. Its purpose is merely to record, contrary to what DSD had argued before the Court of First Instance, that the decision at issue does not make it impossible for DSD to charge a fee that relates only to the affixing of the DGP mark to packaging.
That finding is essentially based on the conclusions drawn by the Court of First Instance, at paragraph et seq. Under that ordinance, participation in an exemption system entails exemption from processing obligations. Consequently, for packaging covered by an exemption system, it is not possible subsequently to use a self-management solution.
The situation described by that Court, in which packaging that was not processed under the DSD system could bear the DGP logo, would deprive the logo of its distinctive character.
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DSD states that that logo, as a registered trade mark, refers exclusively to its system and thus to its services. DSD wrongly attributes to the Packaging Ordinance an approach focused on individual items of packaging, which does not correspond with the economic conditions applicable to mixed solutions.
It observes that that logo is designed to inform traders and final consumers that the packaging on which it is affixed may be processed by the DSD system. Contrary to what DSD claims, mixed systems are permissible, as, moreover, the German Government has stated. They will therefore be examined under that plea.
According to that Court, the only point at issue is whether the quantities of material for recovery put into circulation by the manufacturer or distributor are actually taken back and recovered and whether the rates laid down in the Packaging Ordinance are thereby achieved.
At paragraphs to and paragraphs to of the judgment under appeal, the Court of First Instance set out in full the reasons for which it considered that the Packaging Ordinance and other evidence in the file led to the conclusion that packaging bearing the DGP logo is not necessarily covered by the DSD system alone. Nor has it established that the Trade Mark Agreement contains any indication to that effect. Furthermore, DSD has not established that the affixing of the DGP logo to packaging which is processed under a system other than the DSD system runs counter to that objective of transparency.
The affixing of that logo to packaging notified to DSD indicates clearly to consumers and to the relevant authorities, irrespective of the question whether that packaging will actually be processed under that system or under another system, that the packaging in question is no longer covered by the obligation that it be taken back at points of sale or in the immediate vicinity of them but has been notified to DSD.
The fourth plea in law, alleging infringement of Community trade mark law. That finding accordingly constitutes an infringement of Community trade mark law. Does this place or activity have parking? Is there food available at this place or activity? Is this attraction accessible using public transportation? Is this place or activity good for small groups less than four? Is this a must-do if you are traveling with a big group greater than 5?
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