CELEX: C2002/191/48
Language: en
Date: 2002-08-10 00:00:00
Title: Case T-155/02: Action brought on 14 May 2002 by VVG International Handelsgesellschaft m.b.H., VVG (International) Limited and Metalsivas Metallwarenhandelsgesellschaft m.b.H. against the Commission of the European Communities

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;
 ---pagebreak--- C 191/28               EN                     Official Journal of the European Communities                                      10.8.2002
—     in the alternative, amend the quota for the product group          Furthermore, the Commission acted in breach of primary and
      ‘alloy hot rolled flat products’ to 468 000 tonnes (2001           secondary Community legislation, the principle of equal
      import volume);                                                    treatment and the WTO Agreement.
                                                                         (1) Commission Regulation (EC) No 560/2002 of 27 March 2002
—     in the alternative, amend the quota for the product group              imposing provisional safeguard measures against imports of
      ‘alloy hot rolled flat products’ to 118 916 tonnes.                    certain steel products (OJ L 85, 28.3.2002, p. 1).
Pleas in law and main arguments
                                                                         Action brought on 27 May 2002 by Montan Gesellschaft
                                                                         Voss mbH Stahlhandel and three other companies against
                                                                                the Commission of the European Communities
The applicants are importers of steel products affected by the                                     (Case T-163/02)
contested regulation. That regulation opened tariff quotas in
respect of the importation of 15 products into the Community.
Imports of those products in excess of the volume laid down                                        (2002/C 191/49)
by the relevant tariff quota will incur additional customs
duties.
                                                                                             (Language of the case: German)
The applicants claim that the levels set for the free tariff quotas,     An action against the Commission of the European Communi-
in particular in respect of product group 4, cannot be                   ties was brought before the Court of First Instance of the
reconciled with the recitals in the preamble to the regulation.          European Communities on 27 May 2002 by Montan Gesell-
For product group 4 alone there is a shortfall of 95 129 tonnes.         schaft Voss mbH Stahlhandel, Planegg (Germany), Jepsen
No reason is given for why the tariff quotas set in the                  Stahl GmbH, Nittendorf (Germany), LNS-Lothar Niemeyer
regulation do not comply with the regulation’s aims, as                  Stahlhandel GmbH & Co. KG, Essen (Germany) and Metal
determined by the defendant itself, or with its own formula for          Traders Stahlhandel GmbH, Düsseldorf (Germany), represented
the calculation of those quotas.                                         by K. Friedrich, lawyer, with an address for service in Luxem-
                                                                         bourg.
                                                                         The applicants claim that the Court should:
In addition, the applicants submit that the statement of reasons
for the regulation is also defective in that in the recitals in the      —     annul Commission Regulation (EC) No 560/2002 of
preamble there is no examination whatever of the interests of                  27 March 2002 (1);
all market operators affected by the regulation. No reasons are
given for why the purported aim of the regulation can be                 —     declare that the defendant must pay compensation to the
achieved only by the measures set out therein, why only the                    applicants for the present and future damage suffered by
interests of Community manufacturers are protected while the                   them as a result of the nullity of Regulation (EC) No 560/
interests of other market actors are not take into account, or                 2002 of 27 March 2002;
why the measures adopted in the regulation took effect
immediately and without any vacatio legis. All those deficiencies        —     order the defendant to pay the costs of the proceedings.
in the statement of reasons constitute a material breach
of procedural requirements which renders the contested
regulation void.
                                                                         Pleas in law and main arguments
                                                                         The applicants import steel products from countries outside
The applicants additionally claim that the regulation pursues            the European Communities. They object to Commission
different aims to those stated in the preamble and that the              Regulation (EC) No 560/2002 and claim that the conditions
Commission misused its discretionary powers. The failure to              for the introduction of provisional safeguard measures within
observe the purported aim of ‘maintaining the current import             the meaning of Council Regulation (EC) No 3285/94 of
level plus 10 % thereof ’ is particularly clear evidence that            22 December 1994 (2), as the basic regulation on which the
other aims are being pursued.                                            contested regulation is based, are not met.