CELEX: C2003/146/45
Language: en
Date: 2003-06-21 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

21.6.2003              EN                       Official Journal of the European Union                                             C 146/27
Appeal brought on 31 March 2003 by Philip Morris                        Pleas in law and main arguments
International, Inc., against the judgment delivered on
15 January 2003 by the Second Chamber (Extended
Composition) of the Court of First Instance of the
                                                                        The Appellant contends that, in the contested judgment, the
European Communities in joined cases T-377/00, T-379/
                                                                        Court of First Instance made the following errors of law:
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                  1.    The Court of First Instance violated the concept of a
Japan Tobacco, Inc., and Commission of the European                           challengeable act under Article 230 EC by:
Communities, supported by European Parliament,
Kingdom of Spain, French Republic, Italian Republic,
Portuguese Republic, Republic of Finland, Federal Repub-
                                                                              —     considering that bringing proceedings on the basis
lic of Germany, Hellenic Republic, Kingdom of the
                                                                                    of the contested acts is comparable to bringing
                           Netherlands
                                                                                    proceedings under Article 226 EC;
                        (Case C-146/03 P)
                                                                              —     considering that the admitted lack of competence to
                                                                                    adopt the contested acts and the subsequent creation
                         (2003/C 146/45)
                                                                                    and exercise of such competence do not alter the
                                                                                    legal position of the parties to the case;
An appeal against the judgment delivered on 15 January 2003
                                                                              —     failing to consider that the contested acts produced
by the Second Chamber (Extended Composition) of the Court
                                                                                    legal effects through the mere fact that they deprived
of First Instance of the European Communities in joined cases
                                                                                    the Appellant of certain legal protections and advan-
T-377/00 (1), T-379/00 (2), T-380/00 ( 2), T-260/01 (3) and
                                                                                    tages within the Community legal order;
T-272/01 (4) 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                   —     considering that case C-345/00 P, FNAB, can be
of the European Communities, supported by European Parlia-                          applied to the instant case;
ment, Kingdom of Spain, French Republic, Italian Republic,
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
The Appellant claims that the Court should:                                         of the US District Court of the Eastern district of
                                                                                    New York produces legal effects, then the Court of
                                                                                    First Instance erred in law by considering, notwith-
—     annul the judgment of the Court of First Instance of
                                                                                    standing the circumstances of the case, that the
      15 January 2003 in joined cases T-377/00, T-379/00,
                                                                                    contested acts cannot be reviewed under Article 230
      T-380/00, T-260/01 and T-272/01; and
                                                                                    EC;
—     give final judgment on the issue of admissibility, pursuant
      to Article 61 of the Protocol on the Statutes of the
      Court of Justice, by declaring the Appellant’s actions for              —     as a second alternative, if the Court of First Instance’s
      annulment admissible and refer the case back to the                           reasoning is correct (quod non) that it is not possible
      Court of First Instance for examination of the substance                      to separately review a decision to initiate a law suit,
      of the case; or                                                               it should have joined the question of admissibility
                                                                                    to the substance.
—     failing that, refer the case back to the Court of First
      Instance for judgment on the admissibility issue and
      subsequently and/or simultaneously on the substance of            2.    The Court of First Instance contradicted itself on an
      the case; and                                                           essential point of law.
—     order the Commission to pay the Appellant’s costs before
      the Court of First Instance and the Court of Justice.             3.    The Court of First Instance violated Article 292 EC.
 ---pagebreak--- C 146/28                EN                     Official Journal of the European Union                                           21.6.2003
4.    The Court of First Instance violated the right to effective      1.     Must Article 76 of Council Regulation (EEC) No 1408/71
      judicial protection.                                                    of 14 June 1971 on the application of social security
                                                                              schemes to employed persons, to self-employed persons
                                                                              and to members of their families moving within the
( 1) OJ C 79, 10.3.2001, p. 23.
( 2) OJ C 79, 10.3.2001, p. 24.                                               Community (1) be interpreted as applying only where a
( 3) OJ C 3, 5.1.2002, p. 39.                                                 migrant worker is entitled to family benefits under the
( 4) OJ C 3, 5.1.2002, p. 45.                                                 legislation of the State of employment and under the
                                                                              legislation of the State in which the members of his
                                                                              family are resident?
                                                                       2.     If so, may the bodies of the State of employment suspend
Reference for a preliminary ruling by the Oberlandesge-                       entitlement to family benefits where they consider that a
richt München — Zivilsenate in Augsburg — by order of                         refusal to grant family benefits in the State of residence is
that Court of 27 March 2003 in the case of Nürnberger                         incompatible with Community law?
Allgemeine Versicherungs AG against Portbridge Trans-
                     port International B.V.
                                                                       3.     If not, does Article 76 of Regulation No 1408/71 permit
                          (Case C-148/03)                                     the State of employment to apply the rule against
                                                                              aggregation of benefits where, under the law of the State
                          (2003/C 146/46)                                     of residence of the family members, the worker’s spouse
                                                                              receives or is entitled to similar family benefits?
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
München — Zivilsenate in Augsburg — (Munich Higher
Regional Court, Civil Chambers in Augsburg) of 27 March                (1 ) as amended and updated by Council Regulation (EEC) No 2001/
                                                                            83 of 2 June 1983 (OJ L 230, p. 6).
2003, received at the Court Registry on 31 March 2003, for a
preliminary ruling in the case of Nürnberger Allgemeine
Versicherungs AG against Portbridge Transport International
B.V. on the following question:
Do the provisions on jurisdiction contained in other conven-
tions take precedence over the general provisions on jurisdic-
tion in the Brussels Convention even where a defendant
domiciled in the territory of a State which is a party to the
Brussels Convention and against whom an action has been
brought before a court of another State which is a party to
that Convention fails to submit pleas as to the merits of the
case in the proceedings before that court?
                                                                       Action brought on 3 April 2003 by the Commission of
                                                                                  the European Communities against Ireland
Reference for a preliminary ruling by the Cour de
Cassation of the Grand Duchy of Luxembourg by judg-
ment of that Court of 6 March 2003 in the case of                                                (Case C-154/03)
Caisse Nationale des Prestations Familiales against Ursula
                    SCHWARZ, née WEIDE
                          (Case C-153/03)                                                        (2003/C 146/48)
                          (2003/C 146/47)
Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour de Cassation
(Court of Cassation) of the Grand Duchy of Luxembourg of               An action against Ireland was brought before the Court of
6 March 2003, received at the Court Registry on 3 April 2003,          Justice of the European Communities on 3 April 2003 by the
for a preliminary ruling in the case of Caisse Nationale des           Commission of the European Communities, represented by
Prestations Familiales against Ursula SCHWARZ, née WEIDE               Karen Banks, acting as agent, with an address for service in
on the following questions:                                            Luxembourg.