Source: EURLEX
Language: en
Format: md

24.5.2003 EN Official Journal of the European Union C 124/9

The obligation to end breaches of the Community law on the
award of contracts even by terminating contracts that have
already been concluded can also not be placed in question by
Article 2(6) of Directive 89/665 ( [2] ), which deals with ex post
facto review of potential breaches of the Community law on
tendering. A Treaty infringement can be treated as terminated
only once the Member State concerned recognises the illegal
nature of its action and the breach has been completely
brought to an end.

( [1] ) OJ 1992 L 209, p. 1.
( [2] ) OJ 1989 L 395, p. 33.

**Reference for a preliminary ruling by the Consiglio di**
**Stato by order of that Court of 14 January 2003 in the**
**appeal brought by AEM SpA (C-128/03) and by AEM**
**Torino SpA (C-129/03) against l’Autorità per l’energia**
**elettrica e per il gas; Third party: ENEL Produzione SpA**

**(Case C-128/03 and C-129/03)**

(2003/C 124/15)

Reference has been made to the Court of Justice of the
European Communities by order of the Consiglio di Stato
(Council of State) of 14 January 2003, received at the Court
Registry on 24 March 2003, for a preliminary ruling in the
appeal brought by AEM SpA (C-128/03) and by AEM Torino
SpA (C-129/03) against l’Autorità per l’energia elettrica e per
il gas; Third party: ENEL Produzione SpA on the following
questions:

(a) Can an administrative measure which, on the terms and
for the purposes stated in the reasoning, imposes on
certain undertakings using the electricity transmission
network an increased charge for access and use in order
to finance general revenue charges of the electricity
system be regarded as a State aid for the purposes of
Article 87 et seq. EC

(b) Must the principles established in Directive 96/92 ( [1] )
concerning the liberalisation of the internal electricity
market and in particular Article 7 and 8 thereof concerning operation of the electricity transmission network be
interpreted as precluding the possibility for the Member
State to adopt measures imposing for a transitional period
on certain undertakings for access to and use of the
transmission network an increased charge in order to
offset the overvaluation of hydroelectric and geothermal

electricity occasioned, as stated in the reasoning, by the
altered legislative framework and to finance general
revenue charges of the electricity system.

( [1] ) Directive 96/92/EC of the European Parliament and of the Council
of 19 December 1996 concerning common rules for the internal
market in electricity (OJ L 27 of 30.1.1997, p. 20).

**Action brought on 24 March 2003 by the Commission of**
**the European Communities against the Italian Republic**

**(Case C-130/03)**

(2003/C 124/16)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 24 March
2003 by the Commission of the European Communities,
represented by Niels Bertil Rasmussen and Luigi Cimaglia,
acting as Agents.

The applicant claims that the Court should:

—
Declare that, by failing to designate Community trade
mark courts and tribunals of first and second instance, or
in any event by failing to forward to the Commission,
within the prescribed period, a list of such courts and
tribunals indicating their names and territorial jurisdiction, the Italian Republic has failed to fulfil its obligations
under Article 91 of Council Regulation (EC) No 40/94 ( [1] )
of 20 December 1993 on the Community trade mark;

—
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
imposes an obligation on Member States to designate, in
accordance with their own national legal systems, national
courts and tribunals of first and second instance with jurisdiction 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.

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.

( [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**

**(Case C-131/03 P)**

(2003/C 124/17)

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 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,
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 Wilmington, Delaware (United States), R.J. Reynolds Tobacco Company, 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; alternatively;

—
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.

_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 thirdcountry,
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.