CELEX: C2003/124/23
Language: en
Date: 2003-05-24 00:00:00
Title: Case C-146/03 P: Appeal brought on 31 March 2003 by Philip Morris International, 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

24.5.2003              EN                       Official Journal of the European Union                                        C 124/13
Action brought on 31 March 2003 by the Commission of                    The applicant claims that the Court should:
the European Communities against the Kingdom of Spain
                                                                        —     Declare that, by failing to adopt and bring into force the
                         (Case C-142/03)                                      laws, regulations and administrative provisions necessary
                                                                              to comply with Commission Directive 2000/52/EC ( 1) of
                                                                              26 July 2000 amending Directive 80/723/EEC on the
                         (2003/C 124/21)                                      transparency of financial relations between Member
                                                                              States and public undertakings, the Portuguese Republic
                                                                              has failed to fulfil its obligations under Article 2 of
                                                                              Directive 2000/52/EC;
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 31 March            —     declare in any event that, by failing to communicate
2003 by the Commission of the European Communities,
                                                                              forthwith those provisions to the Commission, the Portu-
represented by Fernando Castillo de la Torre and Niels Bertil                 guese Republic has failed to fulfil its obligations under
Rasmusen, members of its Legal Service, with an address for                   Article 2 of Directive 2000/52/EC;
service in Luxembourg.
                                                                        —     order the Portuguese Republic to pay the costs.
The applicant claims that the Court should:
—     declare that the Kingdom of Spain has infringed Article 91
      of Council Regulation (EC) No 40/94 of 20 December                Pleas in law and main arguments
      1993 on the Community trade mark ( 1) by having
      failed to communicate to the Commission the list of
      Community trade mark courts;                                      The period prescribed for implementation of the directive
                                                                        expired on 31 July 2001.
—     order the Kingdom of Spain to pay the costs.
                                                                        (1 ) OJ L 193 of 29 July 2000, p. 75.
Pleas in law and main arguments
The Member States are under an obligation to designate,
within three years following entry into force of the regulation,
‘Community trade mark courts’ and to communicate to the
Commission their names and their territorial jurisdiction. That
information should have been communicated by 15 March                   Appeal brought on 31 March 2003 by Philip Morris
1997 at the latest.                                                     International, Inc., against the judgment delivered on
                                                                        15 January 2003 by the Second Chamber (Extended
                                                                        Composition) of the Court of First Instance of the
( 1) OJ L 11 of 14.1.1994, p. 1.                                        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 Hold-
                                                                        ings, 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,
Action brought on 31 March 2003 by Commission of the                    Portuguese Republic, Republic of Finland, Federal Repub-
  European Communities against the Portuguese Republic                  lic of Germany, Hellenic Republic, Kingdom of the
                                                                                                    Netherlands
                         (Case C-144/03)
                                                                                                 (Case C-146/03 P)
                         (2003/C 124/22)
                                                                                                  (2003/C 124/23)
An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 31 March
2003 by the Commission of the European Communities,                     An appeal against the judgment delivered on 15 January 2003
represented by M. França and J. Flett, acting as Agents, with an        by the Second Chamber (Extended Composition) of the Court
address for service in Luxembourg.                                      of First Instance of the European Communities in joined cases
 ---pagebreak--- C 124/14                EN                        Official Journal of the European Union                                            24.5.2003
T-377/00 (1), T-379/00 (2), T-380/00 ( 2), T-260/01 (3) and                     —      failing to consider that the contested acts produced
T-272/01 (4) between Philip Morris International, Inc.,                                legal effects through the mere fact that they deprived
R.J. Reynolds Tobacco Holdings, Inc., RJR Acquisition Corp.,                           the Appellant of certain legal protections and advan-
R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco                                   tages within the Community legal order;
International Inc., and Japan Tobacco, Inc., and Commission
of the European Communities, supported by European Parlia-                      —      considering that case C-345/00 P, FNAB, can be
ment, Kingdom of Spain, French Republic, Italian Republic,                             applied to the instant case;
Portuguese Republic, Republic of Finland, Federal Republic of
Germany, Hellenic Republic, Kingdom of the Netherlands,
                                                                                —      failing to consider that the contested acts are open
was brought before the Court of Justice of the European
                                                                                       to judicial review since they are manifestly illegal;
Communities on 31 March 2003 by Philip Morris Inter-                                   and finally
national, Inc., established in Rye Brook, New York (United
States), represented by E. Morgan de Rivery and F. Marchini
Camia, lawyers.                                                                 —      as a first alternative, if the Court of First Instance’s
                                                                                       reasoning is correct (quod non) that only the
                                                                                       decision of the US District Court of the Eastern
                                                                                       district of New York produces legal effects, then the
The Appellant claims that the Court should:                                            Court of First Instance erred in law by considering,
                                                                                       notwithstanding the circumstances of the case, that
                                                                                       the contested acts cannot be reviewed under
—     annul the judgment of the Court of First Instance of                             Article 230 EC;
      15 January 2003 in joined cases T-377/00, T-379/00,
      T-380/00, T-260/01 and T-272/01; and                                      —      as a second alternative, if the Court of First Instance’s
                                                                                       reasoning is correct (quod non) that it is not possible
                                                                                       to separately review a decision to initiate a law suit,
—     give final judgment on the issue of admissibility, pursuant                      it should have joined the question of admissibility
      to Article 61 of the Protocol on the Statutes of the                             to the substance.
      Court of Justice, by declaring the Appellant’s actions for
      annulment admissible and refer the case back to the
                                                                          2)    The Court of First Instance contradicted itself on an
      Court of First Instance for examination of the substance
                                                                                essential point of law.
      of the case; or
                                                                          3)    The Court of First Instance violated Article 292 EC.
—     failing that, refer the case back to the Court of First
      Instance for judgment on the admissibility issue and                4)    The Court of First Instance violated the right to effective
      subsequently and/or simultaneously on the substance of                    judicial protection.
      the case; and
                                                                          (1 ) OJ C 79, 10.3.2001, p. 23.
—     order the Commission to pay the Appellant’s costs before            (2 ) OJ C 79, 10.3.2001, p. 24.
      the Court of First Instance and the Court of Justice.               (3 ) OJ C 3, 5.1.2002, p. 39.
                                                                          (4 ) OJ C 3, 5.1.2002, p. 45.
Pleas in law and main arguments
The Appellant contends that, in the contested judgment, the
Court of First Instance made the following errors of law:                 Action brought on 3 April 2003 by the Commission of
                                                                                    the European Communities against Ireland
1)    The Court of First Instance violated the concept of a
      challengeable act under Article 230 EC by:                                                      (Case C-154/03)
                                                                                                      (2003/C 124/24)
      —     considering that bringing proceedings on the basis
            of the contested acts is comparable to bringing
            proceedings under Article 226 EC;
                                                                          An action against Ireland was brought before the Court of
      —     considering that the admitted lack of competence to           Justice of the European Communities on 3 April 2003 by the
            adopt the contested acts and the subsequent creation          Commission of the European Communities, represented by
            and exercise of such competence do not alter the              Karen Banks, acting as agent, with an address for service in
            legal position of the parties to the case;                    Luxembourg.