R.J. Reynolds Tobacco Holdings, Inc. and Others v Commission of the European Communities.
Date: 2006-09-12
49. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil  v Commission  [2000] ECR I-5291, paragraph 34; Case C‑248/99 P France  v Monsanto and Commission  [2002] ECR I-1, paragraph 68; and Case C-41/00 P Interporc  v Commission  [2003] ECR I‑2125, paragraph 15).
50. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirement to state reasons under those provisions (see inter alia the order in Case C-174/97 P FFSA and Others  v Commission  [1998] ECR I-1303, paragraph 24, and Interporc  v Commission , paragraph 16). Such an appeal amounts in reality to no more than a request for re‑examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake (see the order in Case C-26/94 P X  v Commission [1994] ECR I-4379, paragraph 13, and Bergaderm and Goupil  v Commission , paragraph 35).
51. However, provided that an appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in an appeal (see Case C-210/98 P Salzgitter  v Commission  [2000] ECR I‑5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia FNAB and Others  v Council , paragraphs 30 and 31; Case C-321/99 P ARAP and Others  v Commission  [2002] ECR I-4287, paragraph 49; and Interporc  v Commission , paragraph 17).
54. As regards the first part of that plea in law, as the Court of First Instance rightly pointed out in paragraph 77 of the judgment under appeal, it is settled case-law that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment (see, inter alia, IBM v Commission , paragraph 9; Case C-117/91 Bosman  v Commission  [1991] ECR I-4837, paragraph 13; and Case C-123/03 P Commission  v Greencore  [2004] ECR I-11647, paragraph 44).
55. Therefore, contrary to what the appellants maintain, it is not only preparatory acts which fall outside the scope of the judicial review provided for in Article 230 EC but any act not producing legal effects which are binding on and capable of affecting the interests of the individual, such as confirmatory measures and implementing measures (see, in particular, Case C-46/03 United Kingdom  v Commission  [2005] ECR I-10167, paragraph 25), mere recommendations and opinions (Case C-476/93 P Nutral  v Commission  [1995] ECR I-4125, paragraph 30) and, in principle, internal instructions (see France  v Commission , paragraph 9).
58. As regards the second part of the plea, inasmuch as it does not coincide with the third, fourth and fifth parts, it must be stated that the Court of First Instance rightly found, by reference to paragraph 47 of the judgment in Commission  v Germany , that although the commencement of proceedings constitutes an indispensable step for the purpose of obtaining a binding judgment it does not per se determine definitively the obligations of the parties to the case, so that, a fortiori , the decision to bring legal proceedings does not in itself alter the legal position in question.
64. As regards the fourth part of the plea, the Court of First Instance correctly interpreted the judgment in Spain  v Commission , paragraphs 12 to 20, when it stated that the effect of that judgment is that a decision to initiate the procedure for examining State aid produces legal effects as referred to in Article 230 EC. Specific legal consequences flow from the assessment and classification of the aid mentioned and from the choice of procedure which follows from that. By contrast, the mere fact that, by the contested decisions, the Commission made a choice as to the procedure to be undertaken against the appellants and thus excluded other procedures cannot, in itself, be a legal effect for the purposes of that article.
80. It is true that, as the Court of First Instance observed in paragraph 121 of the judgment under appeal, by means of Articles 230 EC and 241 EC, on the one hand, and Article 234 EC, on the other, the Treaty establishes a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions and has entrusted such review to the Community courts (see Les Verts  v Parliament , paragraph 23; Foto-Frost , paragraph 16; and Case C‑461/03 Gaston Schul Douane-expediteur  [2005] ECR I-10513, paragraph 22).
81. However, the fact remains that, although the requirement as to legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position must be interpreted in the light of the principle of effective judicial protection, such an interpretation cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the Community courts (see, by analogy, Unión de Pequeños Agricultores  v Council , paragraph 44, as regards the condition that the contested act must be of individual concern  to the natural or legal person lodging an application).
82. The Court of First Instance was also right to hold, in paragraph 123 of the judgment under appeal, that even though individuals are unable to bring an action for annulment of those measures, they are not denied access to justice since an action for non-contractual liability under Article 235 EC and the second paragraph of Article 288 EC is available if the conduct in question is of such a nature as to entail liability on the part of the Community.
83. Such an action is not part of the system of review of the legality of Community acts with legal effects which are binding on, and capable of affecting the interests of, the applicant, but it is available where a party has suffered harm on account of unlawful conduct by an institution.
94. It is sufficient to point out in that regard that Article 211 EC provides that the Commission is to ensure that the provisions of the Treaty and the measures taken pursuant thereto are applied, that under Article 281 EC the Community has legal personality and that Article 282 EC, although restricted to Member States on its wording, is the expression of a general principle and states that the Community has legal capacity and is, to that end, to be represented by the Commission.
95. As to the claim that the Court of First Instance should have joined an appraisal of the objection of inadmissibility to the substance of the case, it must be stated that, unlike the position in the judgments cited by the appellants, an appraisal as to whether the objection of inadmissibility raised before the Court of First Instance was well founded was not dependent, in the circumstances of this case, on the appraisal to be made of the substantive pleas put forward by the appellants.