CELEX: C2000/302/35
Language: en
Date: 2000-10-21 00:00:00
Title: Case C-313/00 P: Appeal brought on 18 August 2000 by Zino Davidoff SA and Davidoff & Cie SA against the judgment delivered on 27 June 2000 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-172/98 and T-175/98 to T-177/98 between Salamander AG, Una Film "City Revue" GmbH, Alma Media Group Advertising SA & Co. Partnership and Others, Zino Davidoff SA and Davidoff & Cie SA, supported by Markenverband eV, Manifattura Lane Gaetano Marzotto & Figli SpA and Lancaster BV, and European Parliament and Council of the European Union, supported by Republic of Finland, Commission of the European Communities, United Kingdom of Great Britain and Northern Ireland and French Republic

C 302/18                EN                    Official Journal of the European Communities                                    21.10.2000
—     declare inadmissible, alternatively unfounded, the appli-          Appeal brought on 18 August 2000 by Zino Davidoff SA
      cation in Case T-117/98;                                           and Davidoff & Cie SA against the judgment delivered on
                                                                         27 June 2000 by the Third Chamber of the Court of First
—     order the respondents to pay the costs of the present              Instance of the European Communities in Joined Cases
      proceedings and those of the proceedings before the                T-172/98 and T-175/98 to T-177/98 between Salamander
      Court of First Instance.                                           AG, Una Film ‘City Revue’ GmbH, Alma Media Group
                                                                         Advertising SA & Co. Partnership and Others, Zino
                                                                         Davidoff SA and Davidoff & Cie SA, supported by
                                                                         Markenverband eV, Manifattura Lane Gaetano Marzotto
Pleas in law and main arguments                                          & Figli SpA and Lancaster BV, and European Parliament
                                                                         and Council of the European Union, supported by Repub-
The first plea alleges infringement by the Court of First Instance       lic of Finland, Commission of the European Communities,
                                                                         United Kingdom of Great Britain and Northern Ireland
of the criteria governing the admissibility of the action in Case
                                                                                              and French Republic
T-117/98. The measure which, it is claimed, the Commission
should have adopted, namely a regulation increasing the
Community quota for imports of bananas from third countries
or ACP countries, would necessarily have been a measure of                                      (Case C-313/00 P)
general, abstract application which could not have been
regarded as being of individual concern to the respondents.
                                                                                                 (2000/C 302/35)
The second plea alleges infringement of two of the conditions
governing the applicability of Regulation No 404/93 (1):
                                                                         An appeal against the judgment delivered on 27 June 2000 by
      The first part of the plea concerns the first condition laid       the Third Chamber of the Court of First Instance of the
                                                                         European Communities in Joined Cases T-172/98 and
      down by Article 30, namely that the difficulties facing an
                                                                         T-175/98 to T-177/98 between Salamander AG, Una Film
      operator must result from the transition from the old
      national regime to the new Community regime. The                   ‘City Revue’ GmbH, Alma Media Group Advertising SA & Co.
                                                                         Partnership and Others, Zino Davidoff SA and Davidoff &
      judgment infringed Community law, inasmuch as it did
                                                                         Cie SA, supported by Markenverband eV, Manifattura Lane
      not contain any analysis of the specific effects on the
      position of an applicant under the old regime which was            Gaetano Marzotto & Figli SpA and Lancaster BV, and European
                                                                         Parliament and Council of the European Union, supported by
      aimed at establishing whether the national regime would
                                                                         Republic of Finland, Commission of the European Communi-
      have guaranteed a solution to the difficulties facing such
      an applicant.                                                      ties, United Kingdom of Great Britain and Northern Ireland
                                                                         and French Republic, was brought before the Court of Justice
                                                                         of the European Communities on 18 August 2000 by Zino
      The second part concerns the criterion of the existence of         Davidoff SA and Davidoff & Cie SA, represented by Professor
      ‘difficulties threatening the existence of the undertaking’.       Rolf Wägenbaur, of the Brussels Bar, with an address for service
      The Court of First Instance expressly ruled that that              in Luxembourg at the Chambers of Arendt & Medernach,
      criterion was not a condition necessary for the application        8-10 Rue Mathias Hardt, B.P. 39, L-2010 Luxembourg.
      of Article 30, thereby violating the Community case-law
      in force, as observed by the Commission.
                                                                         The appellants claims that the Court should:
The third plea alleges infringement of one of the criteria
governing the applicability of Article 16(3) of Regulation
No 404/93, namely the need for the existence of difficulties in          1.    Set aside the judgment of the Court of First Instance of
supplying the Community. By declaring that ‘there is no need                   27 June 2000, in so far as it relates to the applicants and
for the applicants to prove the existence of an actual shortage                appellants, and reject the plea of inadmissibility;
of supplies to the Community market; instead, it is enough for
them to show that there is a risk of a shortage of supplies’, the
Court of First Instance contravened the letter and the spirit of
                                                                         2.    Consequently, declare the application of the applicants
the article in question, as interpreted by Community case-law
                                                                               and appellants admissible;
up until the present time. Moreover, the Court of First Instance
committed an error of law by maintaining, without providing
any reasons, that, where supplies to the Italian market alone
are affected, that must automatically affect supplies to the             3.    Uphold the application and consequently annul Directive
Community, thereby isolating a part of the Community                           98/43/EC of the European Parliament and of the Council
market.                                                                        of 6 July 1998 on the approximation of the laws,
                                                                               regulations and administrative provisions of the Member
                                                                               States relating to the advertising and sponsorship of
                                                                               tobacco products (OJ 1998 L 213, p. 9), at least in so far
(1) OJ L 47 of 25.2.1993, p. 1.
                                                                               as it prohibits or hinders sponsorship and advertising
                                                                               relating to brand names which were used before 30 July
                                                                               1998 for the advertising of products other than tobacco
                                                                               products;
 ---pagebreak--- 21.10.2000              EN                      Official Journal of the European Communities                                       C 302/19
4.    In so far as necessary, remit the case to the Court of First         2)   If Question 1 is answered in the affirmative:
      Instance for the procedure to be continued;
                                                                                (a)   Is Commission Regulation (EEC) No 1984/83 of
5.    Order the defendants and respondents to bear the costs                          22 June 1983 on the application of Article 85 (3) of
      of the proceedings.                                                             the Treaty to categories of exclusive purchasing
                                                                                      agreements (OJ 1983 L 173, p. 5) also generally
                                                                                      applicable to agreements of the kind described in
Pleas in law and main arguments                                                       Question 1?
—     Misinterpretation of the concept of ‘direct concern’ within               (b) Is that regulation also applicable if, prior to onward
      the meaning of the fourth paragraph of Article 230 EC:                          selling, the roast coffee purchased is further proces-
      The contested judgment wrongly states that a directive is                       sed for sale as a coffee drink?
      not, before the adoption of national measures and
      independently of them, such as to affect directly the legal          3)   If Question 2 is answered in the affirmative:
      situation of economic operators. With respect to the
      fourth paragraph of Article 230 EC, what matters is                       Is Article 3(d) of Regulation No 1984/83 to be construed
      merely whether the directive as such has a direct effect                  as meaning that agreements of the kind described in
      on the legal situation of an undertaking (without waiting                 Question 1, under which it is the contracting parties’
      until it is transposed by the Member States).                             estimation that the total sales quantity will be supplied
                                                                                within a period of less than five years, are also covered by
—     Incorrect assessment of the effects of the directive on the               the exemption under the regulation or is that the
      appellants’ situation, and hence inadequate reasoning in                  case only if there are also objective grounds for such
      the contested judgment: Directive 98/43 as such already                   expectations?
      constitutes a process which amounts to an expropriation
      (the possibility of advertising for the existing brand               4)   Is Article 85(1) and (2) of the EC Treaty to be interpreted
      ceases, so that its value for diversification products falls              as meaning that an agreement of the kind described in
      to zero). This affects the appellants’ legal situation, not               Question 1 is also invalid inasmuch as, in the event of
      merely their ‘factual situation’.                                         premature termination of the agreement, it provides for
                                                                                repayment of a rebate by the seller paid to the purchaser
                                                                                on commencement of the agreement determined by
                                                                                reference to total contractually agreed sales, and do the
                                                                                aforementioned provisions require that there should be
                                                                                no claim for repayment under that head?
Reference for a preliminary ruling by the Oberster
Gerichtshof, Republic of Austria by order of that court of
11 May 2000 in the case of Kraft Jacobs Suchard Öster-
reich GesmbH against 1. Eduard Mitsche, 2. Maria Mits-
                        che, 3. Peter Roman                                Reference for a preliminary ruling from the Bundesfi-
                                                                           nanzhof, by order of that court of 25 May 2000 in the
                          (Case C-314/00)                                  case of Rudolf Maierhofer against Finanzamt Augsburg-
                                                                                                          Land
                          (2000/C 302/36)
                                                                                                    (Case C-315/00)
Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof                                           (2000/C 302/37)
(Supreme Court), Republic of Austria, of 11 May 2000,
received at the Court Registry on 21 August 2000, for a                    Reference has been made to the Court of Justice of the
preliminary ruling in the case of Kraft Jacobs Suchard Öster-             European Communities by order of the Bundesfinanzhof
reich GesmbH against 1. Eduard Mitsche, 2. Maria Mitsche,                  (Federal Finance Court), of 25 May 2000, received at the Court
3. Peter Roman on the following questions:                                 Registry on 21 August 2000, for a preliminary ruling in the
                                                                           case of Rudolf Maierhofer against Finanzamt Augsburg-Land
1)    Is Article 85(1) (now Article 81(1) EC) of the EC Treaty             on the following questions:
      also applicable to purchasing agreements under which,
      over a period of several years, the goods agreed to be               1.   Does the term ‘letting of immovable property’ in
      purchased are to be called down and paid for by the                       Article 133(b) of Directive 77/388/EEC (1) cover the pro-
      purchaser at current ‘list price’, albeit there is a stipulation          vision for consideration of a building constructed from
      for delivery of minimum annual quantities in line with                    prefabricated components which is to be removed follow-
      the buyer’s overall requirements, subject to a specified                  ing the termination of the contract and may be re-used
      permissible variation?                                                    on another site?