CELEX: C2002/003/67
Language: en
Date: 2002-01-05 00:00:00
Title: Case T-260/01: Action brought on 15 October 2001 by R.J. Reynolds Tobacco Holdings, Inc, R.J. Reynolds Tobacco International, Inc, R.J. Reynolds Tobacco Company and RJR Acquisition Corp. against the Commission of the European Communities

5.1.2002               EN                    Official Journal of the European Communities                                             C 3/39
Decision of the Board of      Dismissal of the appeal                   respect to other economic and non-economic injuries arising
Appeal:                                                                 therefrom. The payment of these customs duties and VAT has
                                                                        allegedly been avoided by smuggling cigarettes into the
Grounds for bringing          No likelihood of confusion within         European Union. This is the second time that the European
the action:                   the meaning of Article 8(1)(b) of         Community has commenced such proceedings (1). In the
                              Council Regulation (EC) 40/94             current proceedings, the Commission is also acting as agent
                              of 20 December 1993 on the                for Member States for the recovery of these taxes allegedly
                              Community trade mark (1)                  owed to them.
(1) OJ 1994 L 11, p. 1.
                                                                        The applicants submit that the Community has no competence
                                                                        to commence these proceedings. According to the applicants,
                                                                        neither the EC Treaty nor any other act confers on the
                                                                        European Commission the competence to act as a legal person,
                                                                        especially not outside the jurisdiction of the Member States, in
                                                                        order independently to protect its financial interests in this
                                                                        way outside the Community or to combat fraud in this way;
Action brought on 15 October 2001 by R.J. Reynolds                      nor is the action in question a joint action by the Commission
Tobacco Holdings, Inc, R.J. Reynolds Tobacco Inter-                     and the Member States, since not all Member States are
national, Inc, R.J. Reynolds Tobacco Company and RJR                    involved in the proceedings.
Acquisition Corp. against the Commission of the Euro-
                        pean Communities
                         (Case T-260/01)                                The current proceedings also constitute, according to the
                                                                        applicants, an attempt to recover the allegedly unpaid taxes.
                                                                        The applicants submit that the European Commission has no
                          (2002/C 3/67)                                 competence to collect taxes. This competence lies solely with
                                                                        the Member States within their respective territories. According
                                                                        to the applicants, the Commission should therefore commence
                  (Language of the case: English)                       actions against the Member States for failing properly to apply
                                                                        the Communities’ rules on customs duties and VAT.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              The applicants also submit that the Community is not
European Communities on 15 October 2001 by R.J. Reynolds                competent to act as agent for the Member States in the
Tobacco Holdings, Inc, R.J. Reynolds Tobacco International,             proceedings.
Inc, R.J. Reynolds Tobacco Company and RJR Acquisition
Corp., represented by Mr Paul Lomas and Mr Onno Brouwer
of Freshfields Bruckhaus Deringer, London (United Kingdom).
                                                                        According to the applicants, the Commission has also failed to
The applicants claim that the Court should:                             follow the proper procedure leading up to the decision to
                                                                        commence these proceedings. The Commission should have
                                                                        followed the procedure set out in Article 280 (4) and 251 EC
—     annul the Commission’s decision, which became known               Treaty to adopt measures combatting fraud. Furthermore, the
      to the applicant on 6 August 2001, to commence the
                                                                        Commission has not respected the applicants right to be heard
      second US proceedings;
                                                                        and their right to be provided with reasons. Moreover, the
                                                                        applicants contend that the Commission violated the principle
—     order that the Commission pay the costs of the present            of legal certainty, the rights of defence and due process,
      proceedings, including those of the applicants and                the principle of proportionality and the principle of sound
      intervening parties.                                              administration. Finally, the Applicants contend that the Com-
                                                                        mission misused its powers.
Pleas in law and main arguments
                                                                        (1) The decision to commence the first proceedings is being contested
                                                                            by the applicants in Case T-379/00 (JO C 79 of 10.3.2001, p. 24).
The applicants are the defendants in legal proceedings brought
by the European Community before a United States Court, in
which the Community is seeking damages in respect of
allegedly unpaid customs duties and VAT, and relief in