CELEX: C1999/048/57
Language: en
Date: 1999-02-20 00:00:00
Title: Action brought on 19 October 1998 by Salamander AG against the European Parliament and the Council of the European Union (Case T-172/98)

C 48/26              EN                 Official Journal of the European Communities                                 20.2.1999
     ORDER OF THE COURT OF FIRST INSTANCE                              of the laws, regulations and administrative provisions
                    of 16 December 1998                                of the Member States relating to the advertising and
                                                                       sponsorship of tobacco products (OJ L 213,
in   Case    T-93/98:     Ioannis Rentzos      v.   European           30.7.1998);
                         Parliament (1)
(Staff report Ð Rejection of a request for revision of a
staff report Ð Action for annulment Ð Time-limits for              Ð in the alternative, annul Article 3; and
          bringing proceedings Ð Inadmissibility)
                        (1999/C 48/56)
                                                                   Ð order the Council to pay the costs of the proceedings.
                (Language of the case: French)
In Case T-93/98: Ioannis Rentzos, an official of the               Pleas in law and main arguments adduced in support
European       Parliament,     residing   at     Niederanven
(Luxembourg), represented by Carlo Revoldini, of the
Luxembourg Bar, with an address for service in                     The applicant has been manufacturing and marketing
Luxembourg at the latter's Chambers, 180 Route de                  under licence a range of high-quality shoes under the
Longwy, v. European Parliament (Agent: Yannis Pantalis)            Camel Boots trade mark since 1978. Camel Boots are
Ð application for annulment of the applicant's staff               extremely successful products and can be found all over
report for the period 1995-1997, of the defendant's                the world.
decision rejecting the request for revision of that report
and, in so far as might be necessary, of the defendant's
decision rejecting the applicant's complaint Ð the Court
of First Instance (Fifth Chamber), composed of: J. D.              Under Article 3(1) and (2) of Directive 98/43/EC, the
Cooke, President, R. García-Valdecasas and P. Lindh,               applicant will no longer be able to advertise its Camel
Judges; H. Jung, Registrar, made an order on 16 December           Boots shoes, unless the Member States elect to exempt
1998, the operative part of which is as follows:                   such advertising from the general advertising and
                                                                   sponsorship ban enacted by the Directive. The applicant
                                                                   seeks the annulment of Directive 98/43/EC or, failing that,
1. The application is dismissed as inadmissible.                   of Article 3 thereof.
2. The parties are to bear their own costs.
                                                                   The applicant's first plea is that Directive 98/43/EC lacks
(1) OJ C 234, 25.7.1998.                                           a legal basis and is ultra vires. Both the content and the
                                                                   legislative history of the Directive show that it is
                                                                   primarily, if not exclusively, a public health measure. By
                                                                   virtue of Article 129(4) of the EC Treaty, the Community
                                                                   may not adopt harmonising measures with respect to
                                                                   public health.
Action brought on 19 October 1998 by Salamander AG
against the European Parliament and the Council of the
                       European Union                              Article 100a cannot provide a legal basis for the Directive,
                       (Case T-172/98)                             as any effect that the Directive may have on the internal
                                                                   market will only be marginal. In fact, the Directive's
                        (1999/C 48/57)                             impact on the internal market will be negative. The same
                                                                   conclusion applies with respect to Articles 57(2) and 66 of
               (Language of the case: English)                     the EC Treaty, which are also mentioned as the legal basis
                                                                   for the Directive.
An action against the European Parliament and the
Council of the European Union was brought before the
Court of First Instance of the European Communities on             The applicant's second plea is that Directive 98/43/EC
19 October 1998 by Salamander AG, represented by                   creates unjustifiable obstacles to the free movement of
Onno W. Brouwer and FreÂdeÂric P. Louis, with an address           goods and the freedom to provide services and therefore
for service in Luxembourg at the Chambers of Loesch and            infringes Articles 30 and 59 of the EC Treaty.
Wolter, 11, rue Goethe.
The applicant claims that the Court should:                        The applicant's third plea is that the Directive provides
                                                                   insufficient reasoning for its harsh treatment of good-faith
                                                                   brand diversification advertising, and does not explain
Ð annul Directive 98/43/EC of the European Parliament              whether and how the Community legislature has taken
    and the Council of 6 July 1998, on the approximation           into account the subsidiarity principle.
 ---pagebreak--- 20.2.1999            EN                Official Journal of the European Communities                                   C 48/27
The applicant's fourth plea is that the treatment reserved        Action brought on 7 December 1998 by Vasilios
to good-faith brand diversification advertising is                       Boukouvalas against the European Parliament
disproportionate. In view of the fact that advertising for                             (Case T-193/98)
tobacco products is granted a milder treatment, the
treatment of good-faith brand diversification advertising is                            (1999/C 48/59)
also discriminatory.
                                                                                 (Language of the case: Greek)
The applicant's fifth plea is that the advertising ban
enacted by the Directive infringes its right to freedom of
speech and in particular cannot be justified under                An action against the European Parliament was brought
Article 10(2) of the European Convention on Human                 before the Court of First Instance of the European
Rights.                                                           Communities on 7 December 1998 by Vasilios
                                                                  Boukouvalas, an official of the European Parliament,
The applicant's sixth plea is that the Directive deprives         resident in Brussels, represented by Professor Kharis
holders of trade-mark rights of the substance of their            Tagaras, of the Thessaloniki Bar, with an address for
rights and thus infringes the fundamental rights to               service in Luxembourg at the Office of VeÂronique
property and of freedom of trade, as well as the Paris            Duhaubois, 139 Rue Schetzel, L-2518.
Convention and the Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS).
                                                                  The applicant claims that the Court should:
                                                                  Ð find the action admissible;
Action brought on 23 October 1998 by Alma Media                   Ð hold to be unlawful and annul (a) the implied refusal
Group Advertising SA & Co and Others against the                      of the defendant's staff to pay, in respect of the
European Parliament and the Council of the European                   applicant's father and mother, the allowance for
                           Union                                      persons treated as if they were dependent children,
                                                                      during the period from 1 August 1997 to 31 July
                      (Case T-176/98)                                 1998, notwithstanding the decision of the
                       (1999/C 48/58)                                 Secretary-General of 28 January 1998 and (b)
                                                                      Decision No 26039 of 9 September 1998, of the
                                                                      defendant finding that the applicant is not entitled to
               (Language of the case: English)
                                                                      the above allowance;
An action against the European Parliament and the
Council of the European Union was brought before the              Ð order the defendant to pay that allowance to the
Court of First Instance of the European Communities on                applicant for the abovementioned period, together
23 October 1998 by Alma Media Group Advertising SA &                  with interest for late payment at 8 % from the date
Co and Others, represented by Helen Papaconstantinou,                 upon which each monthly payment became due;
Eric Morgan de Rivery and Jacques Derenne, with an
address for service in Luxembourg at the Chambers of
Bonn & Schmitt, 7 Val Ste Croix.                                  Ð order the defendant to pay the applicant's legal costs,
                                                                      and to so order even if the action is dismissed, because
                                                                      there are exceptional circumstances within the
The applicants claim that the Court should:                           meaning of the first subparagraph of Article 87(3) of
                                                                      the Rules of Procedure, in particular circumstances of
Ð annul Directive 98/43/EC of the European Parliament                 personal impecuniosity, as set out in the main body of
    and of the Council of 6 July 1998 on the                          the application.
    approximation of the laws, regulations and
    administrative provisions of the Member States
    relating to the advertising and sponsorship of tobacco        Pleas in law and main arguments adduced in support
    products published (OJ L 213, 30.7.1998, p. 9), and
                                                                  Infringement of Article 90 of the Staff
Ð order the European Parliament and the Council of the            Regulations and of the principles of the
    European Union to pay the costs.                              protection of legitimate expectations and of
                                                                  proper administration
Pleas in law and main arguments adduced in support
                                                                  According to the applicant, any favourable reply by the
The grounds of the present application and its main               appointing authority to an official's administrative
arguments are those raised in Case T-172/98 Salamander            complaint must be binding on that body and, in any
v. Parliament and Council.                                        event, the subsequent revocation or amendment of the
                                                                  reply cannot retroactively deprive the official of the rights
                                                                  which flowed from it.