Judgment — ECLI:EU:T:2000:168
Date: 2000-06-27
Language of the case: German;English
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Principles, objectives and tasks of the Treaties;Approximation of laws;Quantitative restrictions;Freedom to provide services
Concepts: Applications by natural or legal persons
Procedure: Action for annulment - inadmissible
Origin: Austria;Germany;Greece

Summary of the Judgment 
Actions for annulment — Natural or legal persons — Measures of direct and individual 
concern to them — Directive approximating the laws, regulations and administrative 
provisions of the Member States relating to the advertising and sponsorship of tobacco 
products — Action brought by undertakings operating in the market for advertising of 
those products — Inadmissible 
(EC Treaty, Art. 173, fourth para, (now, after amendment, Art. 230 EC, fourth para.); 
Council Directive 98/43) 
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SUMMARY — JOINED CASES T-172/98, T-175/98 TO T-177/98 
An action for annulment brought against 
Directive 98/43 on the approximation of 
the laws, regulations and administrative 
provisions of the Member States relating to 
the advertising and sponsorship of tobacco 
products by undertakings marketing pro­
ducts other than tobacco products under 
names used for tobacco products and 
undertakings operating in the market for 
advertising of tobacco products is inadmis­
sible. 
First, the fourth paragraph of Article 173 
of the Treaty (now, after amendment, the 
fourth paragraph of Article 230 EC) makes 
no provision, for the benefit of individuals, 
for a direct action before the Community 
judicature challenging a directive. Even if it 
were possible, contrary to the wording of 
that provision, for directives to be assimi­
lated to regulations so that an action 
challenging a decision 'adopted in the form' 
of a directive might be admissible, Directive 
98/43 does not constitute a 'disguised' 
decision and does not contain specific 
provisions which have the character of an 
individual decision. It is in fact a normative 
measure, since it applies in a general and 
abstract manner to all economic operators 
in the Member States who, from a specified 
date, fulfil the conditions it lays down, and 
since, furthermore, its application within 
the Member States requires its transposi­
tion into each national legal system by 
means of national implementing measures. 
Second, while a legislative measure which 
applies to economic operators generally 
may be of direct and individual concern to 
some of them, that is not so with the 
directive in question. For the applicants to 
be directly concerned, the contested Com­
munity measure must directly affect their 
legal situation and leave no discretion to 
the addressees of that measure who are 
entrusted with the task of implementing it, 
such implementation being purely auto­
matic and resulting from the Community 
rules alone without the application of other 
intermediate rules. Directive 98/43, which 
requires the Member States to impose 
obligations on economic operators, cannot 
of itself impose those obligations on the 
applicants, and is thus not such as to 
concern them directly. As a secondary 
point, the directive leaves the Member 
States a power of assessment, such that 
the applicants cannot be directly concerned 
by it. Accordingly, it does not of itself affect 
the legal situation of the applicants. 
Finally, the action for annulment brought 
by the applicants cannot be declared admis­
sible because of the lack of adequate 
judicial protection which is said to follow 
from the absence of national remedies 
which might allow the validity of the 
directive to be reviewed by means of a 
reference for a preliminary ruling under 
Article 177 of the EC Treaty (now Arti­
cle 234 EC), since the principle of equality 
of conditions of access to the Community 
judicature by means of an action for 
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SALAMANDER AND OTHERS V PARLIAMENT AND COUNCIL 
annulment requires that those conditions 
do not depend on the particular circum­
stances of the legal system of each Member 
State, and from the fact that a reference for 
a preliminary ruling is less effective than a 
direct action for annulment, since that 
circumstance, even if proved, could not 
entitle the Court of First Instance to usurp 
the function of the founding authority of 
the Community in order to change the 
system of legal remedies and procedures 
established by Articles 173 and 177 of the 
Treaty and by Article 178 of the EC Treaty 
(now Article 235 EC) and designed to give 
the Court of Justice and the Court of First 
Instance power to review the legality of acts 
of the institutions. 
Moreover, it does not appear that the 
applicants are deprived of all right of 
recourse against the possible consequences 
of Directive 98/43. They may in any event, 
if they consider themselves to have suffered 
damage flowing directly from that mea­
sure, challenge it in proceedings for non­
contractual liability under Article 178 of 
the Treaty and Article 215 of the EC Treaty 
(now Article 288 EC). 
(see paras 27-28, 30, 52, 70-71, 74-75, 77) 
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