CELEX: C2003/124/16
Language: en
Date: 2003-05-24 00:00:00
Title: Case C-130/03: Action brought on 24 March 2003 by the Commission of the European Communities against the Italian Republic

24.5.2003              EN                       Official Journal of the European Union                                               C 124/9
The obligation to end breaches of the Community law on the                     electricity occasioned, as stated in the reasoning, by the
award of contracts even by terminating contracts that have                     altered legislative framework and to finance general
already been concluded can also not be placed in question by                   revenue charges of the electricity system.
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           (1 ) Directive 96/92/EC of the European Parliament and of the Council
only once the Member State concerned recognises the illegal                  of 19 December 1996 concerning common rules for the internal
nature of its action and the breach has been completely                      market in electricity (OJ L 27 of 30.1.1997, p. 20).
brought to an end.
( 1) OJ 1992 L 209, p. 1.
( 2) OJ 1989 L 395, p. 33.
                                                                        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)
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                         An action against the Italian Republic was brought before the
Torino SpA (C-129/03) against l’Autorità per l’energia                  Court of Justice of the European Communities on 24 March
  elettrica e per il gas; Third party: ENEL Produzione SpA              2003 by the Commission of the European Communities,
                                                                        represented by Niels Bertil Rasmussen and Luigi Cimaglia,
                                                                        acting as Agents.
                 (Case C-128/03 and C-129/03)
                                                                        The applicant claims that the Court should:
                          (2003/C 124/15)
                                                                        —      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
Reference has been made to the Court of Justice of the                         tribunals indicating their names and territorial jurisdic-
European Communities by order of the Consiglio di Stato                        tion, the Italian Republic has failed to fulfil its obligations
(Council of State) of 14 January 2003, received at the Court                   under Article 91 of Council Regulation (EC) No 40/94 (1)
Registry on 24 March 2003, for a preliminary ruling in the                     of 20 December 1993 on the Community trade mark;
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         —      Order the Italian Republic to pay the costs.
il gas; Third party: ENEL Produzione SpA on the following
questions:
(a)   Can an administrative measure which, on the terms and             Pleas in law and main arguments
      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           Under the second paragraph of Article 249 of the Treaty
      to finance general revenue charges of the electricity             establishing the European Community, regulations are binding
      system be regarded as a State aid for the purposes of             in their entirety and directly applicable in all Member States.
      Article 87 et seq. EC
                                                                        In the present case, Article 91 of Regulation (EC) No 40/94
(b)   Must the principles established in Directive 96/92 (1)            imposes an obligation on Member States to designate, in
      concerning the liberalisation of the internal electricity         accordance with their own national legal systems, national
      market and in particular Article 7 and 8 thereof concern-         courts and tribunals of first and second instance with jurisdic-
      ing operation of the electricity transmission network be          tion in matters of infringement and validity of Community
      interpreted as precluding the possibility for the Member          trade marks, and to forward to the Commission a list
      State to adopt measures imposing for a transitional period        of designated Community trade mark courts and tribunals
      on certain undertakings for access to and use of the              indicating their names and territorial jurisdiction. The final
      transmission network an increased charge in order to              date for compliance with these obligations was 15 March
      offset the overvaluation of hydroelectric and geothermal          1997.
 ---pagebreak--- C 124/10               EN                       Official Journal of the European Union                                          24.5.2003
The Commission cannot but find that the Italian Republic has            The Appellants claim that the Court should:
not yet forwarded to it the above information and has not thus
far designated any Community trade mark court or tribunal,
                                                                        —     set aside the judgment of the Court of First Instance of
thereby also failing to meet its obligations under Article 91(1)
                                                                              15 January 2003, whereby it:
of that regulation.
                                                                              i)    dismissed the applications as inadmissible;
( 1) OJ L 11 of 14.1.1994, p. 1.
                                                                              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
Appeal brought on 25 March 2003 by R.J. Reynolds                              the basis that the contested decisions were manifestly
Tobacco Holdings, Inc., RJR Acquisition Corp., R.J. Reyn-                     illegal and to give final judgment in the matter; alterna-
olds Tobacco Company, R.J. Reynolds Tobacco Inter-                            tively;
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                    —     declare their applications for annulment admissible and
Instance of the European Communities in joined cases                          refer the case back to the Court of First Instance for
T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01                           judgment on the merits; alternatively;
between Philip Morris International, Inc., R.J. Reynolds
Tobacco Holdings, Inc., RJR Acquisition Corp., R.J. Reyn-               —     refer the case back to the Court of First Instance for
olds Tobacco Company, R.J. Reynolds Tobacco Inter-                            consideration of the issue of admissibility joined to the
national Inc. and Japan Tobacco, Inc., and Commission                         merits and for judgment accordingly;
of the European Communities, supported by European
Parliament, Kingdom of Spain, French Republic, Italian
Republic, Portuguese Republic, Republic of Finland, Fed-                —     order the Commission to pay the costs pursuant to
eral Republic of Germany, Hellenic Republic, Kingdom of                       Article 69, second paragraph of the Rules of Procedure
                         the Netherlands                                      of the Court of Justice.
                        (Case C-131/03 P)
                                                                        Pleas in law and main arguments
                         (2003/C 124/17)
                                                                        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
An appeal against the judgment delivered on 15 January 2003             to commence proceedings cannot be considered to be a
by the Second Chamber (Extended Composition) of the Court               decision which is open to challenge. Apart from the judgment
of First Instance of the European Communities in joined cases           of the Court of Justice of the European Communities in
T-377/00 (1), T-379/00 (2), T-380/00 ( 2), T-260/01 (3) and             case 60/81, IMB v. Commission, which establishes admissi-
T-272/01 (4) between Philip Morris International, Inc.,                 bility where there are ‘exceptional circumstances’, the case-law
R.J. Reynolds Tobacco Holdings, Inc., RJR Acquisition Corp.,            clearly demonstrates that admissibility of new classes or types
R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco                    of application is determined on a case by case basis.
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           The Court of First Instance misinterpreted the case-law when
Germany, Hellenic Republic, Kingdom of the Netherlands,                 it found that no legal effects ensued from the loss of the
was brought before the Court of Justice of the European                 possibility of obtaining a preliminary ruling from the Court of
Communities on 25 March 2003 by R.J. Reynolds Tobacco                   Justice of the European Communities as to the Commission’s
Holdings, Inc., established in Winston-Salem, North Carolina            competence to commence proceedings in a third state in an
(United States), RJR Acquisition Corp., established in Wilming-         attempt to recover allegedly unpaid customs duties and VAT.
ton, Delaware (United States), R.J. Reynolds Tobacco Com-               In concluding that commencing proceedings in a third country,
pany, established in Winston-Salem, North Carolina (United              rather than in the Community, did not have legal effects, the
States), R.J. Reynolds Tobacco International Inc., established in       Court of First Instance also misinterpreted the case-law that
Winston-Salem, North Carolina (United States) and Japan                 provides that where a definitive choice has been made for one
Tobacco, Inc., established in Tokyo (Japan), represented by             procedure over another, the decision embodying that choice
O.W. Brouwer, lawyer, and P. Lomas, solicitor.                          has legal effects for the purpose of Article 230.