Case C-131/03 P: Appeal brought on 25 March 2003 by R.J. Reynolds Tobacco Holdings, Inc., RJR Acquisition Corp., R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco International Inc., and Japan Tobacco, Inc., against the judgment delivered on 15 January 2003 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in joined cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 between Philip Morris International, Inc., R.J. Reynolds Tobacco Holdings, Inc., RJR Acquisition Corp., R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco International Inc. and Japan Tobacco, Inc., and Commission of the European Communities, supported by European Parliament, Kingdom of Spain, French Republic, Italian Republic, Portuguese Republic, Republic of Finland, Federal Republic of Germany, Hellenic Republic, Kingdom of the Netherlands
Date: 2003-05-24
Institutions: Court of Justice
Subjects: European Parliament, Finland, France, General Court (EU), Germany, Greece, Italy, Netherlands, Portugal, Spain, action for annulment (EU), tobacco industry

C 124/10

EN

Official Journal of the European Union

24.5.2003

The Commission cannot but find that the Italian Republic has
not yet forwarded to it the above information and has not thus
far designated any Community trade mark court or tribunal,
thereby also failing to meet its obligations under Article 91(1)
of that regulation.

The Appellants claim that the Court should:

— set aside the judgment of the Court of First Instance of

15 January 2003, whereby it:

( 1) OJ L 11 of 14.1.1994, p. 1.

Appeal brought on 25 March 2003 by R.J. Reynolds
Tobacco Holdings, Inc., RJR Acquisition Corp., R.J. Reyn-
olds Tobacco Company, R.J. Reynolds Tobacco Inter-
national Inc., and Japan Tobacco, Inc., against the judg-
ment delivered on 15 January 2003 by the Second
Chamber (Extended Composition) of the Court of First
Instance of the European Communities in joined cases
T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01
between Philip Morris International, Inc., R.J. Reynolds
Tobacco Holdings, Inc., RJR Acquisition Corp., R.J. Reyn-
olds Tobacco Company, R.J. Reynolds Tobacco Inter-
national Inc. and Japan Tobacco, Inc., and Commission
of the European Communities, supported by European
Parliament, Kingdom of Spain, French Republic, Italian
Republic, Portuguese Republic, Republic of Finland, Fed-
eral Republic of Germany, Hellenic Republic, Kingdom of
the Netherlands

i)

dismissed the applications as inadmissible;

ii)

ordered the applicants to bear their own costs and,
jointly and severally, the costs incurred by the
Commission; and

iii) ordered the interveners to bear their own costs.

— declare their applications for annulment admissible on
the basis that the contested decisions were manifestly
illegal and to give final judgment in the matter; alterna-
tively;

— declare their applications for annulment admissible and
refer the case back to the Court of First Instance for
judgment on the merits; alternatively;

— refer the case back to the Court of First Instance for
consideration of the issue of admissibility joined to the
merits and for judgment accordingly;

— order the Commission to pay the costs pursuant

to
Article 69, second paragraph of the Rules of Procedure
of the Court of Justice.

(Case C-131/03 P)

(2003/C 124/17)

Pleas in law and main arguments

International,

An appeal against the judgment delivered on 15 January 2003
by the Second Chamber (Extended Composition) of the Court
of First Instance of the European Communities in joined cases
T-377/00 (1), T-379/00 (2), T-380/00 (2), T-260/01 (3) and
T-272/01 (4) between Philip Morris
Inc.,
R.J. Reynolds Tobacco Holdings, Inc., RJR Acquisition Corp.,
R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco
International Inc., and Japan Tobacco, Inc., and Commission
of the European Communities, supported by European Parlia-
ment, Kingdom of Spain, French Republic, Italian Republic,
Portuguese Republic, Republic of Finland, Federal Republic of
Germany, Hellenic Republic, Kingdom of the Netherlands,
was brought before the Court of Justice of the European
Communities on 25 March 2003 by R.J. Reynolds Tobacco
Holdings, Inc., established in Winston-Salem, North Carolina
(United States), RJR Acquisition Corp., established in Wilming-
ton, Delaware (United States), R.J. Reynolds Tobacco Com-
pany, established in Winston-Salem, North Carolina (United
States), R.J. Reynolds Tobacco International Inc., established in
Winston-Salem, North Carolina (United States) and Japan
Tobacco, Inc., established in Tokyo (Japan), represented by
O.W. Brouwer, lawyer, and P. Lomas, solicitor.

The Appellants submit that the Court of First Instance erred in
law in so far as it held that, as a matter of principle, a decision
to commence proceedings cannot be considered to be a
decision which is open to challenge. Apart from the judgment
of the Court of Justice of the European Communities in
case 60/81, IMB v. Commission, which establishes admissi-
bility where there are ‘exceptional circumstances’, the case-law
clearly demonstrates that admissibility of new classes or types
of application is determined on a case by case basis.

The Court of First Instance misinterpreted the case-law when
it found that no legal effects ensued from the loss of the
possibility of obtaining a preliminary ruling from the Court of
Justice of the European Communities as to the Commission’s
competence to commence proceedings in a third state in an
attempt to recover allegedly unpaid customs duties and VAT.
In concluding that commencing proceedings in a third country,
rather than in the Community, did not have legal effects, the
Court of First Instance also misinterpreted the case-law that
provides that where a definitive choice has been made for one
procedure over another, the decision embodying that choice
has legal effects for the purpose of Article 230.

24.5.2003

EN

Official Journal of the European Union

C 124/11

The Court of First Instance also failed to recognise that by the
contested decisions the Commission took a definitive position
as to its competence as a matter of EC law, which constitutes
legal effects within the meaning of the established case-law.

The Appellants also submit that the Court of First Instance
was incorrect to proceed on the basis that the District Court
could remedy the lack of a preliminary reference mechanism
in the United States by applying Community law itself, that by
declaring the application inadmissible,
the Court of First
Instance violated their right to effective judicial protection and
that it misapplied and misinterpreted Community case-law on
the contestability of manifestly illegal measures.

Finally, it is submitted that, in concluding that any disputes as
to the Commission’s competence to commence proceedings
in the United States could be determined by the US District
Court, the Court of First Instance adopted a solution that was
contrary to Article 292 and the system of the Treaties.

( 1) OJ C 79, 10.3.2001, p. 23.
( 2) OJ C 79, 10.03.2001, p. 24.
( 3) OJ C 3, 05.01.2002, p. 39.
( 4) OJ C 3, 05.01.2002, p. 45.

referring thereto on agricultural products and food-
stuffs, as amended by Regulations (EC) No 1935/
95 (2) and (EC) No 1804/1999 (3); by failing to adopt
the necessary measures to prevent misleading use of
that word, thereby infringing Article 2 in conjunc-
tion with Article 10a of
the abovementioned
amended regulation; and by failing to adopt
measures to prevent purchasers from being misled
as to the method of manufacture or production
of foodstuffs, thereby infringing Article 2 of the
abovementioned amended regulation in conjunction
with Article 2(1)(a)(i) of Directive 2000/13/EC of
the European Parliament and of the Council of
20 March 2000 on the approximation of the laws
of
the Member States relating to the labelling,
presentation and advertising of foodstuffs (4); and

— by maintaining in the Comunidad Foral de Navarra,
contrary to the same provisions, use of the term
‘bio’, on its own or in combination with other terms,
for dairy products in respect of which that term has
been customarily and continuously used when they
have not been obtained in accordance with organic
production methods,

the Kingdom of Spain has failed to fulfil its obligations
under the abovementioned regulation and directive, in
particular the provisions thereof as indicated above;

Action brought on 26 March 2003 by the Commission of
the European Communities against the Kingdom of Spain

— order the Kingdom of Spain to pay the costs.

(Case C-135/03)

(2003/C 124/18)

Pleas in law and main arguments

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 26 March
2003 by the Commission of the European Communities,
represented by Gérard Berscheid, Legal Adviser, and Sara Pardo
Quintillán, of its Legal Service, with an address for service in
Luxembourg.

The applicant claims that the Court should :

— Declare that:

Article 2 of Regulation No (EEC) 2092/91 prohibits the use of
the term designating organic agricultural
derivatives of
methods in any of the official
languages of the European
Community for products which have not been obtained by
means of organic production methods. Accordingly, use of the
term ‘bio’, cited expressly in Article 2 as an example of a
derived term indicating organic agriculture, is prohibited.

— by maintaining in its domestic legal system and in
current usage the term ‘bio’, on its own or in
combination with other terms, for products which
have not been obtained in accordance with organic
production methods, thereby infringing Article 2 in
conjunction with Article 5 of Council Regulation
(EEC) No 2092/91 (1) of 24 June 1991 on organic
production of agricultural products and indications

National legislation which allows the use of the term ‘bio’ in
the labelling, advertising material or commercial documents
for a product which has not been manufactured in accordance
with Regulation (EEC) No 2092/91, such as Real Decreto
(Royal Decree) 1852/1993 following the amendments inserted
by Real Decreto 506/2001,
infringes Regulation (EEC)
No 2092/91.