Case T-155/02: Action brought on 14 May 2002 by VVG International Handelsgesellschaft m.b.H., VVG (International) Limited and Metalsivas Metallwarenhandelsgesellschaft m.b.H. against the Commission of the European Communities
Date: 2002-08-10
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), import, infringement of EU law, iron and steel product, steel, tariff quota

10.8.2002

EN

Official Journal of the European Communities

C 191/27

The applicant claims that the Court should:

— annul Article 3(1) of Council Directive 2002/10/EC of
12 February 2002 amending Directives 92/79/EEC, 92/
80/EEC and 95/59/EC as regards the structure and rates
of excise duty applied on manufactured tobacco (1);

— in the alternative, annul subparagraph 1 of Article 4(2) of
Council Directive 2002/10/EC of 12 February 2002
amending Directives 92/79/EEC, 92/80/EEC and 95/59/
EC as regards the structure and rates of excise duty
applied on manufactured tobacco, in so far as it applies
only to Federal Republic of Germany and not to the other
Member States and requires the Federal Republic of
Germany to transpose the directive by 1 January 2008 at
the latest;

— order the defendant to pay the costs.

Furthermore, an amendment to the previous definition of
cigars and cigarillos can also not be legally justified by reference
to the Community law dimension of human health protection.
In particular, adoption of the contested amendment is not
justified by Article 152(1) EC.

In the alternative, the applicant claims that the derogation
provided for in the first subparagraph of Article 4(2) of
Directive 2002/10/EC, which applies solely to the Federal
Republic of Germany, unlawfully disturbs the internal market
by giving rise to distortions of competition, and is thereby in
breach of Article 93 EC.

(1) OJ L 46, 16.2.2002, p. 26.
(2) Council Directive 95/59/EC of 27 November 1995 on taxes
other than turnover taxes which affect the consumption of
manufactured tobacco (OJ L 291, 6.12.1995, p. 40).

Pleas in law and main arguments

The applicant sells cigarette and cigarillo products in Germany
and other Member States, and manufactures, inter alia, specific
types of cigarillos. According to the applicant, its products
fundamentally differ from factory-manufactured cigarettes in
terms of both their quality and the production process. Under
the definition in the previous version of Directive 95/59/EC of
27 November 1995 (2), the goods produced by the applicant
were taxed as cigars or cigarillos.

Pursuant to the amended definition in the contested directive,
the goods produced by the applicant are no longer deemed to
be cigars or cigarillos, but cigarettes.
In consequence, all
Member States, with the exception of Germany, are required
to levy the minimum excise duty of 57 % of the retail selling
price, which applies to cigarettes, on the applicant’s products
instead of, as was previously the case, the minimum excise
duty of 5 % of the retail selling price applicable to cigars and
cigarillos. Consequently, in the Member States concerned, the
applicant’s products are subject to a disproportionate increase
in tobacco taxes.

Action brought on 14 May 2002 by VVG International
Handelsgesellschaft m.b.H., VVG (International) Limited
and Metalsivas Metallwarenhandelsgesellschaft m.b.H.
against the Commission of the European Communities

(Case T-155/02)

(2002/C 191/48)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 May 2002 by VVG International
Handelsgesellschaft m.b.H., VVG (International) Limited and
Metalsivas Metallwarenhandelsgesellschaft m.b.H., Vienna
(Austria), represented by W. Schuler, lawyer.

The applicant claims that
the adoption of the contested
amendment to the definition contravened the conditions for
harmonisation of legislation laid down in Article 93 EC.
According to the applicant’s submission, its products do not
belong to the same group of tobacco goods as cigarettes, nor
are they similar ’in many respects’ to a cigarette within the
meaning of the tenth recital in the preamble to the contested
directive. There is no distortion of competition in respect of
the applicant’s products because those products do not share
a market with cigarettes. The Council also acted in breach of
the prohibition on preventative harmonisation.

The applicants claim that the Court should:

— annul Commission Regulation (EC) No 560/2002 of
27 March 2002 (1) and order the defendant to pay the
applicants costs;

— in the alternative, annul the contested regulation in so far
as it includes product group 4 ‘alloy hot rolled flat
products’ in the 15 product groups concerned;

C 191/28

EN

Official Journal of the European Communities

10.8.2002

— in the alternative, amend the quota for the product group
‘alloy hot rolled flat products’ to 468 000 tonnes (2001
import volume);

Furthermore, the Commission acted in breach of primary and
secondary Community legislation,
the principle of equal
treatment and the WTO Agreement.

— in the alternative, amend the quota for the product group
‘alloy hot rolled flat products’ to 118 916 tonnes.

(1) Commission Regulation (EC) No 560/2002 of 27 March 2002
imports of

imposing provisional safeguard measures against
certain steel products (OJ L 85, 28.3.2002, p. 1).

Pleas in law and main arguments

Action brought on 27 May 2002 by Montan Gesellschaft
Voss mbH Stahlhandel and three other companies against
the Commission of the European Communities

The applicants are importers of steel products affected by the
contested regulation. That regulation opened tariff quotas in
respect of the importation of 15 products into the Community.
Imports of those products in excess of the volume laid down
by the relevant tariff quota will
incur additional customs
duties.

(Case T-163/02)

(2002/C 191/49)

(Language of the case: German)

The applicants claim that the levels set for the free tariff quotas,
in particular in respect of product group 4, cannot be
reconciled with the recitals in the preamble to the regulation.
For product group 4 alone there is a shortfall of 95 129 tonnes.
No reason is given for why the tariff quotas set in the
regulation do not comply with the regulation’s aims, as
determined by the defendant itself, or with its own formula for
the calculation of those quotas.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 May 2002 by Montan Gesell-
schaft Voss mbH Stahlhandel, Planegg (Germany),
Jepsen
Stahl GmbH, Nittendorf (Germany), LNS-Lothar Niemeyer
Stahlhandel GmbH & Co. KG, Essen (Germany) and Metal
Traders Stahlhandel GmbH, Düsseldorf (Germany), represented
by K. Friedrich, lawyer, with an address for service in Luxem-
bourg.

In addition, the applicants submit that the statement of reasons
for the regulation is also defective in that in the recitals in the
preamble there is no examination whatever of the interests of
all market operators affected by the regulation. No reasons are
given for why the purported aim of the regulation can be
achieved only by the measures set out therein, why only the
interests of Community manufacturers are protected while the
interests of other market actors are not take into account, or
why the measures adopted in the regulation took effect
immediately and without any vacatio legis. All those deficiencies
in the statement of reasons constitute a material breach
of procedural requirements which renders the contested
regulation void.

The applicants claim that the Court should:

— annul Commission Regulation (EC) No 560/2002 of

27 March 2002 (1);

— declare that the defendant must pay compensation to the
applicants for the present and future damage suffered by
them as a result of the nullity of Regulation (EC) No 560/
2002 of 27 March 2002;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants additionally claim that the regulation pursues
different aims to those stated in the preamble and that the
Commission misused its discretionary powers. The failure to
observe the purported aim of ‘maintaining the current import
level plus 10 % thereof ’ is particularly clear evidence that
other aims are being pursued.

The applicants import steel products from countries outside
the European Communities. They object
to Commission
Regulation (EC) No 560/2002 and claim that the conditions
for the introduction of provisional safeguard measures within
the meaning of Council Regulation (EC) No 3285/94 of
22 December 1994 (2), as the basic regulation on which the
contested regulation is based, are not met.