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

C 146/22

EN

Official Journal of the European Union

21.6.2003

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Under the second paragraph of Article 249 of the Treaty
establishing the European Community, regulations are binding
in their entirety and directly applicable in all Member States.

In the present case, Article 91 of Regulation (EC) No 40/94
in
imposes an obligation on Member States to designate,
accordance with their own national legal systems, national
courts and tribunals of first and second instance with jurisdic-
tion in matters of infringement and validity of Community
trade marks, and to forward to the Commission a list
of designated Community trade mark courts and tribunals
indicating their names and territorial jurisdiction. The final
date for compliance with these obligations was 15 March
1997.

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.

( 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. Rey-
nolds 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. Rey-
nolds 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

(Case C-131/03 P)

(2003/C 146/37)

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,

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 claim that the Court should:

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

15 January 2003, whereby it:

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.

21.6.2003

EN

Official Journal of the European Union

C 146/23

Pleas in law and main arguments

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 admissibility
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.

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, 10.3.2001, 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 Giudice di Pace
of Genoa-Voltri by order of that Court of 10 March 2003
in the case of Viacom Outdoor S.r.l. against Société
GIOTTO Immobilier S.a.r.l.

(Case C-134/03)

(2003/C 146/38)

Justice of the
Reference has been made to the Court of
European Communities by order of the Giudice di Pace
(Magistrate) of Genoa-Voltri of 10 March 2003, received at the
Court Registry on 25 March 2003, for a preliminary ruling in
the case of Viacom Outdoor S.r.l. against Société GIOTTO
Immobilier S.a.r.l. on the following questions:

1.

Is the entrusting to a public undertaking (municipalities)
of the management of a tax and duties such as those
described above, on a market which constitutes a substan-
tial part of the common market and on which the public
undertaking holds a dominant position inconsistent with:

a)

b)

the application of Article 86 EC in conjunction with
Article 82 EC;

the application of Article 86 EC in conjunction with
Article 49 EC.

2.

Is the payment to that public undertaking of the income
from the tax and charges in question inconsistent with:

a)

b)

the application of Article 86 EC in conjunction with
Article 82 EC;

the application of Articles 87 EC and 88 EC, as
unlawful State aid (not notified) and incompatible
with the common market.