Case C-146/03 P: Appeal brought on 31 March 2003 by Philip Morris International, 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 failure to act, tobacco industry

24.5.2003

EN

Official Journal of the European Union

C 124/13

Action brought on 31 March 2003 by the Commission of
the European Communities against the Kingdom of Spain

The applicant claims that the Court should:

(Case C-142/03)

(2003/C 124/21)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 31 March
2003 by the Commission of the European Communities,
represented by Fernando Castillo de la Torre and Niels Bertil
Rasmusen, members of its Legal Service, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— declare that the Kingdom of Spain has infringed Article 91
of Council Regulation (EC) No 40/94 of 20 December
1993 on the Community trade mark (1) by having
failed to communicate to the Commission the list of
Community trade mark courts;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Member States are under an obligation to designate,
within three years following entry into force of the regulation,
‘Community trade mark courts’ and to communicate to the
Commission their names and their territorial jurisdiction. That
information should have been communicated by 15 March
1997 at the latest.

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

Action brought on 31 March 2003 by Commission of the
European Communities against the Portuguese Republic

(Case C-144/03)

(2003/C 124/22)

— Declare that, by failing to adopt and bring into force the
laws, regulations and administrative provisions necessary
to comply with Commission Directive 2000/52/EC (1) of
26 July 2000 amending Directive 80/723/EEC on the
financial relations between Member
transparency of
States and public undertakings, the Portuguese Republic
has failed to fulfil
its obligations under Article 2 of
Directive 2000/52/EC;

— declare in any event that, by failing to communicate
forthwith those provisions to the Commission, the Portu-
guese Republic has failed to fulfil its obligations under
Article 2 of Directive 2000/52/EC;

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of the directive
expired on 31 July 2001.

(1) OJ L 193 of 29 July 2000, p. 75.

the Court of First Instance of

Appeal brought on 31 March 2003 by Philip Morris
International, Inc., against the judgment delivered on
15 January 2003 by the Second Chamber (Extended
Composition) 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 Hold-
ings, Inc., RJR Acquisition Corp., R.J. Reynolds Tobacco
Company, R.J. Reynolds Tobacco International Inc., and
Japan Tobacco, Inc., and Commission of the European
supported by European Parliament,
Communities,
Kingdom of Spain, French Republic, Italian Republic,
Portuguese Republic, Republic of Finland, Federal Repub-
the
lic of Germany, Hellenic Republic, Kingdom of

Netherlands

(Case C-146/03 P)

(2003/C 124/23)

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 31 March
2003 by the Commission of the European Communities,
represented by M. França and J. Flett, acting as Agents, with an
address for service in Luxembourg.

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

C 124/14

EN

Official Journal of the European Union

24.5.2003

International,

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 31 March 2003 by Philip Morris Inter-
national, Inc., established in Rye Brook, New York (United
States), represented by E. Morgan de Rivery and F. Marchini
Camia, lawyers.

The Appellant claims that the Court should:

— annul the judgment of the Court of First Instance of
15 January 2003 in joined cases T-377/00, T-379/00,
T-380/00, T-260/01 and T-272/01; and

— give final judgment on the issue of admissibility, pursuant
to Article 61 of the Protocol on the Statutes of the
Court of Justice, by declaring the Appellant’s actions for
annulment admissible and refer the case back to the
Court of First Instance for examination of the substance
of the case; or

— failing that, refer the case back to the Court of First
Instance for judgment on the admissibility issue and
subsequently and/or simultaneously on the substance of
the case; and

— order the Commission to pay the Appellant’s costs before
the Court of First Instance and the Court of Justice.

Pleas in law and main arguments

The Appellant contends that, in the contested judgment, the
Court of First Instance made the following errors of law:

1)

The Court of First Instance violated the concept of a
challengeable act under Article 230 EC by:

— considering that bringing proceedings on the basis
of the contested acts is comparable to bringing
proceedings under Article 226 EC;

— failing to consider that the contested acts produced
legal effects through the mere fact that they deprived
the Appellant of certain legal protections and advan-
tages within the Community legal order;

— considering that case C-345/00 P, FNAB, can be

applied to the instant case;

— failing to consider that the contested acts are open
to judicial review since they are manifestly illegal;
and finally

(quod non)

— as a first alternative, if the Court of First Instance’s
reasoning is correct
that only the
decision of the US District Court of the Eastern
district of New York produces legal effects, then the
Court of First Instance erred in law by considering,
notwithstanding the circumstances of the case, that
the contested acts cannot be reviewed under
Article 230 EC;

— as a second alternative, if the Court of First Instance’s
reasoning is correct (quod non) that it is not possible
to separately review a decision to initiate a law suit,
it should have joined the question of admissibility
to the substance.

The Court of First Instance contradicted itself on an
essential point of law.

The Court of First Instance violated Article 292 EC.

The Court of First Instance violated the right to effective
judicial protection.

2)

3)

4)

(1) OJ C 79, 10.3.2001, p. 23.
(2) OJ C 79, 10.3.2001, p. 24.
(3) OJ C 3, 5.1.2002, p. 39.
(4) OJ C 3, 5.1.2002, p. 45.

Action brought on 3 April 2003 by the Commission of
the European Communities against Ireland

(Case C-154/03)

(2003/C 124/24)

— considering that the admitted lack of competence to
adopt the contested acts and the subsequent creation
and exercise of such competence do not alter the
legal position of the parties to the case;

An action against Ireland was brought before the Court of
Justice of the European Communities on 3 April 2003 by the
Commission of the European Communities, represented by
Karen Banks, acting as agent, with an address for service in
Luxembourg.