CELEX: C2003/146/36
Language: en
Date: 2003-06-21 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

21.6.2003              EN                       Official Journal of the European Union                                              C 146/21
Pleas in law and main arguments                                         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
If — as is the case with the Municipality of the City of Munich                network an increased charge for access and use in order
— the conditions for the existence of a body governed by                       to finance general revenue charges of the electricity
                                                                               system be regarded as a State aid for the purposes of
public law are met, there is no need under the directive to
draw a distinction, in the case of every requested provision of                Article 87 et seq. EC
services, as to whether such services are provided in the general
interest and are commercial in nature. It is for that reason            b)     Must the principles established in Directive 96/92 (1)
irrelevant that, in the present case, the City of Munich, in                   concerning the liberalisation of the internal electricity
connection with the provision of a service for a third party,                  market and in particular Article 7 and 8 thereof concern-
burns waste in its own incineration plant and does not effect                  ing operation of the electricity transmission network be
the transport to that plant itself but relies on a private                     interpreted as precluding the possibility for the Member
undertaking to do so. If a public body tenders successfully for                State to adopt measures imposing for a transitional period
a contract but is obliged to subcontract out certain services in               on certain undertakings for access to and use of the
order to ensure provision of the overall service, that public                  transmission network an increased charge in order to
body must apply the procedures set out in Directive 92/50.                     offset the overvaluation of hydroelectric and geothermal
                                                                               electricity occasioned, as stated in the reasoning, by the
                                                                               altered legislative framework and to finance general
The obligation to end breaches of the Community law on the                     revenue charges of the electricity system.
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          (1 ) Directive 96/92/EC of the European Parliament and of the Council
facto review of potential breaches of the Community law on                   of 19 December 1996 concerning common rules for the internal
tendering. A Treaty infringement can be treated as terminated                market in electricity (OJ L 27 of 30.1.1997, p. 20).
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.
                                                                        Action brought on 24 March 2003 by the Commission of
                                                                          the European Communities against the Italian Republic
                                                                                                    (Case C-130/03)
Reference for a preliminary ruling by the Consiglio di                                              (2003/C 146/36)
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
                                                                        An action against the Italian Republic was brought before the
                                                                        Court of Justice of the European Communities on 24 March
                 (Case C-128/03 and C-129/03)                           2003 by the Commission of the European Communities,
                                                                        represented by Niels Bertil Rasmussen and Luigi Cimaglia,
                                                                        acting as Agents.
                          (2003/C 146/35)
                                                                        The applicant claims that the Court should:
Reference has been made to the Court of Justice of the                  —      Declare that, by failing to designate Community trade
European Communities by order of the Consiglio di Stato                        mark courts and tribunals of first and second instance, or
(Council of State) of 14 January 2003, received at the Court                   in any event by failing to forward to the Commission,
Registry on 24 March 2003, for a preliminary ruling in the                     within the prescribed period, a list of such courts and
appeal brought by AEM SpA (C-128/03) and by AEM Torino                         tribunals indicating their names and territorial jurisdic-
SpA (C-129/03) against l’Autorità per l’energia elettrica e per                tion, the Italian Republic has failed to fulfil its obligations
il gas; Third party: ENEL Produzione SpA on the following                      under Article 91 of Council Regulation (EC) No 40/94 (1)
questions:                                                                     of 20 December 1993 on the Community trade mark;
 ---pagebreak--- C 146/22               EN                         Official Journal of the European Union                                        21.6.2003
—     Order the Italian Republic to pay the costs.                        International Inc., and Japan Tobacco, Inc., and Commission
                                                                          of the European Communities, supported by European Parlia-
                                                                          ment, Kingdom of Spain, French Republic, Italian Republic,
Pleas in law and main arguments                                           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
Under the second paragraph of Article 249 of the Treaty                   Communities on 25 March 2003 by R. J. Reynolds Tobacco
establishing the European Community, regulations are binding              Holdings, Inc., established in Winston-Salem, North Carolina
in their entirety and directly applicable in all Member States.           (United States), RJR Acquisition Corp., established in Wilming-
                                                                          ton, Delaware (United States), R. J. Reynolds Tobacco Com-
In the present case, Article 91 of Regulation (EC) No 40/94               pany, established in Winston-Salem, North Carolina (United
imposes an obligation on Member States to designate, in                   States), R. J. Reynolds Tobacco International Inc., established
accordance with their own national legal systems, national                in Winston-Salem, North Carolina (United States) and Japan
courts and tribunals of first and second instance with jurisdic-          Tobacco, Inc., established in Tokyo (Japan), represented by
tion in matters of infringement and validity of Community                 O. W. Brouwer, lawyer, and P. Lomas, solicitor.
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 Appellants claim that the Court should:
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,                —    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.
( 1) OJ L 11 of 14.1.1994, p. 1.
                                                                               i)    dismissed the applications as inadmissible;
                                                                               ii)   ordered the applicants to bear their own costs and,
Appeal brought on 25 March 2003 by R.J. Reynolds                                     jointly and severally, the costs incurred by the
Tobacco Holdings, Inc., RJR Acquisition Corp., R. J. Rey-                            Commission; and
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                           iii) ordered the interveners to bear their own costs.
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-                 —    declare their applications for annulment admissible on
nolds Tobacco Company, R. J. Reynolds Tobacco Inter-                           the basis that the contested decisions were manifestly
national Inc. and Japan Tobacco, Inc., and Commission                          illegal and to give final judgment in the matter; alterna-
of the European Communities, supported by European                             tively
Parliament, Kingdom of Spain, French Republic, Italian
Republic, Portuguese Republic, Republic of Finland, Fed-
eral Republic of Germany, Hellenic Republic, Kingdom of
                         the Netherlands                                  —    declare their applications for annulment admissible and
                                                                               refer the case back to the Court of First Instance for
                                                                               judgment on the merits; alternatively
                        (Case C-131/03 P)
                         (2003/C 146/37)
                                                                          —    refer the case back to the Court of First Instance for
                                                                               consideration of the issue of admissibility joined to the
An appeal against the judgment delivered on 15 January 2003                    merits and for judgment accordingly;
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.,                   —    order the Commission to pay the costs pursuant to
R. J. Reynolds Tobacco Holdings, Inc., RJR Acquisition Corp.,                  Article 69, second paragraph of the Rules of Procedure
R. J. Reynolds Tobacco Company, R. J. Reynolds Tobacco                         of the Court of Justice.