Case T-380/00: Action brought on 20 December 2000 by Japan Tobacco Inc. against the Council of the European Union and the Commission of the European Communities
Date: 2001-03-10
Institutions: Court of First Instance
Subjects: Council of the European Union, European Commission, Japan, action for annulment (EU), customs duties, tobacco industry

C 79/24

EN

Official Journal of the European Communities

10.3.2001

Action brought on 20 December 2000 by R.J. Reynolds
Tobacco Holdings Inc. against the Council of the European
Union and the Commission of the European Communities

(Case T-379/00)

(2001/C 79/42)

(Language of the case: English)

An action against the Council of the European Union and the
the European Communities was brought
Commission of
before the Court of First Instance of the European Communities
on 20 December 2000 by R.J. Reynolds Tobacco Holdings
Inc., a company incorporated in the state of Delaware (USA),
represented by Onno W. Brouwer and Paul Lomas of Fresh-
fields Bruckhaus Deringer.

The applicant claims that the Court should:

— annul the Commission’s decision, which became known
to the applicant on 6 November 2000, to commence the
New York RICO Proceedings in the name of the European
the applicant and/or to instruct
Community against
others to do so; and, if it exists,

— annul the Council’s decision, which never became known
to the applicant, to commence the New York RICO
Proceedings in the name of the European Community
against the applicant and/or to mandate or instruct others
to do so;

— order the Commission and/or the Council to pay the cost
of these proceedings, including those of the applicant and
any third parties.

Pleas in law and main arguments

The applicant is a defendant in legal proceedings brought by
the European Community before a United States court, in
which the Community seeks compensatory, treble and punitive
damages for losses allegedly suffered for unpaid VAT, customs
duties etc. which, it is alleged, the Community has not received
as a result of smuggling of cigarettes into the European Union.

The applicant submits that the Community has no competence
to levy or collect customs duties or VAT directly or indirectly
in civil damages proceedings. All competence to levy or collect
such taxes resides exclusively in the Member States and is
enforceable under procedures established in each of them
which do not include the use of civil damages claims in lieu of
tax collection.

Furthermore, the applicant submits that the Community’s
competence to act in Member States to counter fraud in
cooperation with the Member States does not permit it to
launch civil proceedings in the United States; measures to
counter fraud must be adopted according to the procedures
laid down in Article 280(4) EC, a procedure which was not
followed in respect of the contested decisions.

The applicant contends that, in launching the proceedings in
the United States,
the Community is circumventing the
applicable procedures for the levying and recoverability of
unpaid customs duties and the penalties which could be
imposed for avoidance, that the applicant’s right to be heard
has been infringed, and that the general principles of legal
certainty, the rights of defence, due process and proportionality
have been breached. Finally, the applicant maintains that
the defendants have misused their powers by adopting the
contested decisions.

Action brought on 20 December 2000 by Japan Tobacco
Inc. against the Council of the European Union and the
Commission of the European Communities

(Case T-380/00)

(2001/C 79/43)

(Language of the case: English)

An action against the Council of the European Union and the
Commission of
the European Communities was brought
before the Court of First Instance of the European Communities
on 20 December 2000 by Japan Tobacco Inc., a company
incorporated in Japan, represented by Onno W. Brouwer
and Paul Lomas of Freshfields Bruckhaus Deringer, Brussels
(Belgium).

The applicant claims that the Court should:

— annul the Commission’s decision, which became known
to the applicant on 6 November 2000, to commence the
New York RICO Proceedings in the name of the European
the applicant and/or to instruct
Community against
others to do so; and, if it exists,

— annul the Council’s decision, which never became known
to the applicant, to commence the New York RICO
Proceedings in the name of the European Community
against the applicant and/or to mandate or instruct others
to do so;

— order the Commission and/or the Council to pay the cost
of these proceedings, including those of the applicant and
any third parties.

10.3.2001

EN

Official Journal of the European Communities

C 79/25

Pleas in law and main arguments

The pleas in law and main arguments are analogous to those
relied upon in Case T-379/00.

The applicant

Proprietor of the right to
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

sign

Trade mark or
asserted by way of oppo- mark ‘ILS’
sition in the opposition
proceedings:

Action brought on 30 December 2000 by the Institut für
Lernsysteme against the Office for Harmonisation in the
Internal Market

(Case T-388/00)

(2001/C 79/44)

(Language of the case: English)

Decision of the Oppo-
sition Division:

Decision of the Board of
Appeal:

Grounds of claim:

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 30 December 2000 by the Institut
für Lernsysteme, Hamburg, represented by Jörg Schneider
of CMS Hasche Sigle Eschenlohr Peltzer Schäfer, Stuttgart
(Germany).

A further party to the proceedings before the Board of Appeal
was ELS Educational Services, Inc., Culver City, California,
United States.

The applicant claims that the Court should:

(except

Registered German

figurative
for ‘educational and
teaching material
for
apparatus) in the form of printed
materials; data carriers of all kind
with programmes for educational
purposes; development and run-
ning of correspondence courses’
in Classes 9, 16 and 41

Rejection of the opposition

Rejection of the opposition

— infringement of essential for-
mal provisions, e.g. Article 43
(1) of Council Regulation on
the Community Trade Mark

— misapplication of

the prin-
ciple that the closer the goods
and services are to one anoth-
er, the greater the distance the
marks must observe from one
another

— annul

the decision of

the Office dated 18.10.2000
— R 074/2000-3 and reject the registration of the
Community trade mark 000131276 ‘ELS’;

— order the Office to bear the costs.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The trade mark con-
cerned:

ELS Educational Services, Inc.

students

The verbal mark ‘ELS’ — appli-
cation 131276, relating to ‘edu-
cational
textbooks and printed
materials, namely student work-
teaching man-
books, catalogs,
uals, printed instruction materials
and charts and booklets designed
for
seeking to learn
English as a second language’ in
Class 16;
‘rendering technical
assistance in connection with the
establishment and/or operation of
language schools’ in Class 35 and
‘educational services, namely pro-
viding English language instruc-
tion’ in Class 41

Action brought on 5 January 2001 by Renco S.A. against
the Council of the European Union

(Case T-4/01)

(2001/C 79/45)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 5 January 2001 by Renco S.A., established in
Milan (Italy), represented by Denis Philippe, of the Luxembourg
Bar, and Francesco Apruzzi, of the Brussels Bar.

The applicant claims that the Court should:

— order the defendant to pay to the applicant compensation
totalling 6 863 000 euro, together with compensatory
interest with effect from the date of the event giving rise
to the damage — namely, 14 April 2000 — and legal
interest
the judgment,
composed of:

from the date of delivery of