BellandVision has filed a lawsuit in the Cologne regional court against ELS charging ELS with reporting insufficient licenced quantities to the clearing centre. It alleges that ELS allocates the packaging quantities of customers to other types of packaging material without having obtained the customers’ agreement. According to Belland, this procedure causes it financial damage. Belland has cited declarations of completeness submitted by ELS customers as proof. The legal action is based on the assumption that the customer basically wants to licence only dual quantities.
ELS is indeed a universal service provider and certainly also offers the disposal of other types of packaging material. From the viewpoint of ELS, neither the presentation of the party’s case nor the rationale for the ruling is reasonable.
To the extent that the ruling takes into account concrete cases of volume allocation, these have been undertaken ELS customers, or rather, were arrived at by mutual agreement. In the case of one customer, the disposal of other, non-dual types of packaging material was agreed upon in the contract from the outset. This volume allocation was confirmed by the customer’s tax advisor in the completeness declaration. In addition, there is also present in this case the assessment by an IHK (Chamber of Industry and Commerce) expert which certifies the correct allocation of packaging quantities. The responsible enforcement authority has accepted this assessment, although the court has not done so.
The court does not regard the distributors’ volume allocations as relevant, but considers the system, as the customer’s key authority and based on the fact that it has better information, as obligated to review the customer with respect to volume allocation relating to the individual types of packaging material.
“This ruling handed down by the Cologne regional court may have an impact on all dual systems,” says CEO Sascha Schuh. “As far as the court is concerned, the dual systems are responsible for the final verification of the packaging types used by the obliged party in each case. From the perspective of ELS, this is contrary to the responsibility and the obligations as set forth in the German Packaging Ordinance in connection with the entity first placing the product or service on the market. Accordingly, we shall certainly appeal the ruling of the Cologne regional court.”