CELEX: C2002/191/47
Language: en
Date: 2002-08-10 00:00:00
Title: Case T-154/02: Action brought on 9 May 2002 by Villiger Söhne GmbH against the Council of the European Union

C 191/26                EN                       Official Journal of the European Communities                                       10.8.2002
Articles 81 and 82 EC by the General Council of the Bar of                  ORDER OF THE PRESIDENT OF THE COURT OF FIRST
England and Wales — the Court of First Instance (Fourth                                                  INSTANCE
Chamber), composed of: M. Vilaras, President, V. Tiili and
P. Mengozzi, Judges; H. Jung: Registrar, has made an order in                                         of 7 May 2002
which it:
                                                                            in Case T-306/01 R Abdirisak Aden and Others v Council
1.    Dismisses the application.                                            of the European Union and Commission of the European
                                                                                                       Communities
2.    Orders the applicant to bear his own costs, incurred both in
      these proceedings and in the proceedings for interim relief in        (Proceedings for interim measures — Common foreign
      Cases T-18/01 R and T-18/01 R III, and pay the costs                  and security policy — Sanctions against the Taliban of
      incurred by the Commission in these proceedings and in the                    Afghanistan — Freezing of funds — Urgency)
      proceedings for interim relief in Case T-18/01 R.
                                                                                                     (2002/C 191/46)
(1) OJ C 108 of 7.4.2001.                                                                     (Language of the case: Swedish)
                                                                            In Case T-306/01 R: Abdirisak Aden, resident in Spånga
                                                                            (Sweden), Abdulaziz Ali, resident in Järfälla (Sweden), Ahmed
                                                                            Yusuf, resident in Spånga, Al Barakaat International Foun-
                                                                            dation, established in Spånga, represented by L. Silbersky and
                                                                            T. Olsson, lawyers, against Council of the European Union
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                (Agents: M. Vitsentzatos and I. Rådestad) and Commission of
                              INSTANCE                                      the European Communities (Agents: A. Van Solinge and
                                                                            J. Enegren) — application for suspension of the implemen-
                       of 19 February 2002                                  tation of Council Regulation (EC) No 467/2001 of 6 March
                                                                            2001 prohibiting the export of certain goods and services to
                                                                            Afghanistan, strengthening the flight ban and extending the
in Case T-302/01 R: Gerhard Birkhoff v Commission of                        freeze of funds and other financial resources in respect of the
                  the European Communities                                  Taliban of Afghanistan, and repealing Regulation (EC) No 337/
                                                                            2000 (OJ 2001 L 67, p. 1) and of Commission Regulation (EC)
                                                                            No 2199/2001 of 12 November 2001 amending, for the
(Procedure for interim relief — Officials — Dependent child                 fourth time, Regulation No 467/2001 (OJ 2001 L 295, p. 16)
allowance — Suspension of operation of a measure —                          in so far as they apply to the applicants, until there has been a
                         Urgency — None)                                    ruling on the substance — the President of the Court of First
                                                                            Instance has made an order on 7 May 2002, the operative part
                          (2002/C 191/45)                                   of which is as follows:
                                                                            1.   The application for interim measures is dismissed.
                    (Language of the case: Italian)
                                                                            2.   The costs are reserved.
In Case T-302/01 R: Gerhard Birkhoff, a former official of
the Commission of the European Communities, residing at
Weitnau (Germany), represented by V. Salvatore, lawyer, v
Commission of the European Communities (Agents: J. Currall                  Action brought on 9 May 2002 by Villiger Söhne GmbH
and A. Dal Ferro) — application for suspension of operation                          against the Council of the European Union
of the Commission’s decision of 26 September 2001 rejecting
the complaint lodged by the applicant, and of the decision of
4 July 2001 by which the Commission suspended payment to                                             (Case T-154/02)
the applicant of the dependent child allowance in favour of his
daughter — the President of the Court of First Instance made                                         (2002/C 191/47)
an order on 19 September 2002, the operative part of which
is as follows:                                                                                (Language of the case: German)
1.    The application for interim measures is dismissed.
                                                                            An action against the Council of the European Union was
                                                                            brought before the Court of First Instance of the European
2.    The costs are reserved.
                                                                            Communities on 9 May 2002 by Villiger Söhne GmbH,
                                                                            Waldshut-Tiengen (Germany), represented by B. Wägenbaur,
                                                                            lawyer.
 ---pagebreak--- 10.8.2002              EN                    Official Journal of the European Communities                                         C 191/27
The applicant claims that the Court should:                             Furthermore, an amendment to the previous definition of
                                                                        cigars and cigarillos can also not be legally justified by reference
                                                                        to the Community law dimension of human health protection.
—     annul Article 3(1) of Council Directive 2002/10/EC of             In particular, adoption of the contested amendment is not
      12 February 2002 amending Directives 92/79/EEC, 92/               justified by Article 152(1) EC.
      80/EEC and 95/59/EC as regards the structure and rates
      of excise duty applied on manufactured tobacco (1);
                                                                        In the alternative, the applicant claims that the derogation
—     in the alternative, annul subparagraph 1 of Article 4(2) of       provided for in the first subparagraph of Article 4(2) of
      Council Directive 2002/10/EC of 12 February 2002                  Directive 2002/10/EC, which applies solely to the Federal
      amending Directives 92/79/EEC, 92/80/EEC and 95/59/               Republic of Germany, unlawfully disturbs the internal market
      EC as regards the structure and rates of excise duty              by giving rise to distortions of competition, and is thereby in
      applied on manufactured tobacco, in so far as it applies          breach of Article 93 EC.
      only to Federal Republic of Germany and not to the other
      Member States and requires the Federal Republic of
      Germany to transpose the directive by 1 January 2008 at           (1) OJ L 46, 16.2.2002, p. 26.
      the latest;                                                       (2) Council Directive 95/59/EC of 27 November 1995 on taxes
                                                                            other than turnover taxes which affect the consumption of
                                                                            manufactured tobacco (OJ L 291, 6.12.1995, p. 40).
—     order the defendant to pay the costs.
Pleas in law and main arguments
The applicant sells cigarette and cigarillo products in Germany         Action brought on 14 May 2002 by VVG International
and other Member States, and manufactures, inter alia, specific         Handelsgesellschaft m.b.H., VVG (International) Limited
types of cigarillos. According to the applicant, its products           and Metalsivas Metallwarenhandelsgesellschaft m.b.H.
fundamentally differ from factory-manufactured cigarettes in              against the Commission of the European Communities
terms of both their quality and the production process. Under
the definition in the previous version of Directive 95/59/EC of
27 November 1995 (2), the goods produced by the applicant                                        (Case T-155/02)
were taxed as cigars or cigarillos.
                                                                                                 (2002/C 191/48)
Pursuant to the amended definition in the contested directive,
the goods produced by the applicant are no longer deemed to                                (Language of the case: German)
be cigars or cigarillos, but cigarettes. In consequence, all
Member States, with the exception of Germany, are required
to levy the minimum excise duty of 57 % of the retail selling
price, which applies to cigarettes, on the applicant’s products
instead of, as was previously the case, the minimum excise              An action against the Commission of the European Communi-
duty of 5 % of the retail selling price applicable to cigars and        ties was brought before the Court of First Instance of the
cigarillos. Consequently, in the Member States concerned, the           European Communities on 14 May 2002 by VVG International
applicant’s products are subject to a disproportionate increase         Handelsgesellschaft m.b.H., VVG (International) Limited and
in tobacco taxes.                                                       Metalsivas Metallwarenhandelsgesellschaft m.b.H., Vienna
                                                                        (Austria), represented by W. Schuler, lawyer.
The applicant claims that the adoption of the contested
amendment to the definition contravened the conditions for              The applicants claim that the Court should:
harmonisation of legislation laid down in Article 93 EC.
According to the applicant’s submission, its products do not
                                                                        —     annul Commission Regulation (EC) No 560/2002 of
belong to the same group of tobacco goods as cigarettes, nor
                                                                              27 March 2002 (1) and order the defendant to pay the
are they similar ’in many respects’ to a cigarette within the
                                                                              applicants costs;
meaning of the tenth recital in the preamble to the contested
directive. There is no distortion of competition in respect of
the applicant’s products because those products do not share            —     in the alternative, annul the contested regulation in so far
a market with cigarettes. The Council also acted in breach of                 as it includes product group 4 ‘alloy hot rolled flat
the prohibition on preventative harmonisation.                                products’ in the 15 product groups concerned;