Appeal brought on 18 July 2019 by International Tax Stamp Association Ltd (ITSA) against the order of the General Court (Second Chamber) delivered on 16 May 2019 in Case T-396/18, ITSA v Commission

(Case C-553/19 P)

(2019/C 357/24)

Language of the case: French

Parties

Appellant: International Tax Stamp Association Ltd (ITSA) (represented by: F. Scanvic, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the order of the General Court of the European Union of 16 May 2019 in the Case T-396/18, ITSA v Commission, and recognise that the appellant has a legal interest in bringing proceedings;

— annul Commission Delegated Regulation (EU) 2018/573 of 15 December 2017 on key elements of data storage contracts to be concluded as part of a traceability system for tobacco products, (1) Commission Implementing Regulation (EU) 2018/574 of 15 December 2017 on technical standards for the establishment and operation of a traceability system for tobacco products, (2) and Commission Implementing Decision (EU) 2018/576 of 15 December 2017 on technical standards for security features applied to tobacco products. (3)

Grounds of appeal and main arguments

The appellant maintains, in essence, that the General Court failed to recognise its legal interest in bringing proceedings against Delegated Regulation 2018/573, Implementing Regulation 2018/574 and Implementing Decision 2018/576. On that basis, the General Court was wrong to dismiss as inadmissible the action for annulment brought by the appellant against the Commission’s three measures.

The appellant argues that the two contested regulations affect both it and its members directly. The other criteria in Article 263 TFEU are also fully satisfied. Further, although the main aspects of the contested decision require implementing measures on the part of Member States, the same cannot be said for Article 3(2) of that decision, which limits the use of an independent third-party to one of the five security elements to be placed on tobacco products. The latter provision is sufficient in itself.

With regard to the substance, the appellant maintains that the contested measures infringe Article 8 of the Protocol to Eliminate Illicit Trade in Tobacco Products. (4) That provision prohibits the activities relating to the marking of tobacco products from being entrusted to the tobacco industry, whereas the Commission’s three measures at issue do exactly that. The appellant adds that, although the protocol referred to above has not yet entered into force, it was signed and entered into by the European Union, which means that it prohibits the European Union from taking measures that run counter to that protocol.

The fact that Directive 2014/40/EU (5) does not expressly prohibit the activities at issue from being entrusted to the tobacco industry is irrelevant as, first, that directive can and must be interpreted in accordance with that protocol and, second, even if such an interpretation were impossible, it would be the directive itself which would be contrary to the protocol and, accordingly, to the EU treaties.

(1) OJ 2018 L 96, p. 1.

(2) OJ 2018 L 96, p. 7.

(3) OJ 2018 L 96, p. 57.

(4) First protocol to the World Health Organisation’s Framework Convention on Tobacco Control adopted in Seoul on 12 November 2012.

(5) Directive of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1).