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: 2003-06-21
Institutions: Court of Justice
Subjects: EU Member State, European Commission, European Parliament, Japan, United States, action for annulment (EU), customs duties, tobacco industry

21.6.2003

EN

Official Journal of the European Union

C 146/27

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 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
Communities,
supported by European Parliament,
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 146/45)

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 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

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;

— 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;

— 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

— as a first alternative, if the Court of First Instance’s
reasoning is correct (quod non) 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, notwith-
standing 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.

2.

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

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

3.

The Court of First Instance violated Article 292 EC.

C 146/28

EN

Official Journal of the European Union

21.6.2003

4.

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

( 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.

Reference for a preliminary ruling by the Oberlandesge-
richt München — Zivilsenate in Augsburg — by order of
that Court of 27 March 2003 in the case of Nürnberger
Allgemeine Versicherungs AG against Portbridge Trans-
port International B.V.

(Case C-148/03)

(2003/C 146/46)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
München — Zivilsenate in Augsburg — (Munich Higher
Regional Court, Civil Chambers in Augsburg) of 27 March
2003, received at the Court Registry on 31 March 2003, for a
preliminary ruling in the case of Nürnberger Allgemeine
Versicherungs AG against Portbridge Transport International
B.V. on the following question:

Do the provisions on jurisdiction contained in other conven-
tions take precedence over the general provisions on jurisdic-
tion in the Brussels Convention even where a defendant
domiciled in the territory of a State which is a party to the
Brussels Convention and against whom an action has been
brought before a court of another State which is a party to
that Convention fails to submit pleas as to the merits of the
case in the proceedings before that court?

Reference for a preliminary ruling by the Cour de
Cassation of the Grand Duchy of Luxembourg by judg-
ment of that Court of 6 March 2003 in the case of
Caisse Nationale des Prestations Familiales against Ursula
SCHWARZ, née WEIDE

(Case C-153/03)

(2003/C 146/47)

1. Must Article 76 of Council Regulation (EEC) No 1408/71
of 14 June 1971 on the application of social security
schemes to employed persons, to self-employed persons
and to members of their families moving within the
Community (1) be interpreted as applying only where a
migrant worker is entitled to family benefits under the
legislation of the State of employment and under the
legislation of the State in which the members of his
family are resident?

2.

3.

If so, may the bodies of the State of employment suspend
entitlement to family benefits where they consider that a
refusal to grant family benefits in the State of residence is
incompatible with Community law?

If not, does Article 76 of Regulation No 1408/71 permit
the State of employment
to apply the rule against
aggregation of benefits where, under the law of the State
of residence of the family members, the worker’s spouse
receives or is entitled to similar family benefits?

(1) as amended and updated by Council Regulation (EEC) No 2001/

83 of 2 June 1983 (OJ L 230, p. 6).

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

(Case C-154/03)

(2003/C 146/48)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour de Cassation
(Court of Cassation) of the Grand Duchy of Luxembourg of
6 March 2003, received at the Court Registry on 3 April 2003,
for a preliminary ruling in the case of Caisse Nationale des
Prestations Familiales against Ursula SCHWARZ, née WEIDE
on the following questions:

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.