Case T-154/02: Action brought on 9 May 2002 by Villiger Söhne GmbH against the Council of the European Union
Date: 2002-08-10
Institutions: Court of First Instance
Subjects: Germany, action for annulment (EU), excise duty, tax harmonisation, tobacco, tobacco industry

C 191/26

EN

Official Journal of the European Communities

10.8.2002

Articles 81 and 82 EC by the General Council of the Bar of
England and Wales — the Court of First Instance (Fourth
Chamber), composed of: M. Vilaras, President, V. Tiili and
P. Mengozzi, Judges; H. Jung: Registrar, has made an order in
which it:

1. Dismisses the application.

2. Orders the applicant to bear his own costs, incurred both in
these proceedings and in the proceedings for interim relief in
Cases T-18/01 R and T-18/01 R III, and pay the costs
incurred by the Commission in these proceedings and in the
proceedings for interim relief in Case T-18/01 R.

(1) OJ C 108 of 7.4.2001.

ORDER OF THE PRESIDENT OF THE COURT OF FIRST
INSTANCE

of 7 May 2002

in Case T-306/01 R Abdirisak Aden and Others v Council
of the European Union and Commission of the European
Communities

(Proceedings for interim measures — Common foreign
and security policy — Sanctions against the Taliban of
Afghanistan — Freezing of funds — Urgency)

(2002/C 191/46)

(Language of the case: Swedish)

ORDER OF THE PRESIDENT OF THE COURT OF FIRST
INSTANCE

of 19 February 2002

in Case T-302/01 R: Gerhard Birkhoff v Commission of
the European Communities

(Procedure for interim relief — Officials — Dependent child
allowance — Suspension of operation of a measure —
Urgency — None)

(2002/C 191/45)

(Language of the case: Italian)

In Case T-302/01 R: Gerhard Birkhoff, a former official of
the Commission of the European Communities, residing at
Weitnau (Germany), represented by V. Salvatore, lawyer, v
Commission of the European Communities (Agents: J. Currall
and A. Dal Ferro) — application for suspension of operation
of the Commission’s decision of 26 September 2001 rejecting
the complaint lodged by the applicant, and of the decision of
4 July 2001 by which the Commission suspended payment to
the applicant of the dependent child allowance in favour of his
daughter — the President of the Court of First Instance made
an order on 19 September 2002, the operative part of which
is as follows:

1.

2.

The application for interim measures is dismissed.

The costs are reserved.

In Case T-306/01 R: Abdirisak Aden, resident in Spånga
(Sweden), Abdulaziz Ali, resident in Järfälla (Sweden), Ahmed
Yusuf, resident in Spånga, Al Barakaat International Foun-
dation, established in Spånga, represented by L. Silbersky and
T. Olsson, lawyers, against Council of the European Union
(Agents: M. Vitsentzatos and I. Rådestad) and Commission of
the European Communities (Agents: A. Van Solinge and
J. Enegren) — application for suspension of the implemen-
tation of Council Regulation (EC) No 467/2001 of 6 March
2001 prohibiting the export of certain goods and services to
Afghanistan, strengthening the flight ban and extending the
freeze of funds and other financial resources in respect of the
Taliban of Afghanistan, and repealing Regulation (EC) No 337/
2000 (OJ 2001 L 67, p. 1) and of Commission Regulation (EC)
No 2199/2001 of 12 November 2001 amending, for the
fourth time, Regulation No 467/2001 (OJ 2001 L 295, p. 16)
in so far as they apply to the applicants, until there has been a
ruling on the substance — the President of the Court of First
Instance has made an order on 7 May 2002, the operative part
of which is as follows:

1.

2.

The application for interim measures is dismissed.

The costs are reserved.

Action brought on 9 May 2002 by Villiger Söhne GmbH
against the Council of the European Union

(Case T-154/02)

(2002/C 191/47)

(Language of the case: German)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 9 May 2002 by Villiger Söhne GmbH,
Waldshut-Tiengen (Germany), represented by B. Wägenbaur,
lawyer.

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;