Salamander AG, Una Film "City Revue" GmbH, Alma Media Group Advertising SA & Co. Partnership, Panel Two and Four Advertising SA, Rythmos Outdoor Advertising SA, Media Center Advertising SA, Zino Davidoff SA y Davidoff & Cie SA contra Parlamento Europeo y Consejo de la Unión Europea.

• Jurisdiction: European Union
• Celex Number: 61998TJ0172
• ECLI: ECLI:EU:T:2000:168
• Docket Number: T-175/98,T-172/98,,T-177/98
• Date: 27 June 2000
• Procedure Type: Recours en annulation - irrecevable
• Court: General Court (European Union)

61998A0172

Judgment of the Court of First Instance (Third Chamber) of 27 June 2000. - Salamander AG, Una Film "City Revue" GmbH, Alma Media Group Advertising SA & Co. Partnership, Panel Two and Four Advertising SA, Rythmos Outdoor Advertising SA, Media Center Advertising SA, Zino Davidoff SA and Davidoff & Cie SA v European Parliament and Council of the European Union. - Action for annulment - Directive 98/43/EC - Prohibition of advertising and sponsorship of tobacco products - Admissibility. - Joined cases T-172/98, T-175/98 to T-177/98.

European Court reports 2000 Page II-02487

Summary Parties Grounds Decision on costs Operative part

Keywords

Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Directive approximating the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products - Action brought by undertakings operating in the market for advertising of those products - Inadmissible

(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230 EC, fourth para.); Council Directive 98/43)

Summary

$$An action for annulment brought against Directive 98/43 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products by undertakings marketing products other than tobacco products under names used for tobacco products and undertakings operating in the market for advertising of tobacco products is inadmissible.

First, the fourth paragraph of Article 173 of the Treaty (now, after amendment, the fourth paragraph of Article 230 EC) makes no provision, for the benefit of individuals, for a direct action before the Community judicature challenging a directive. Even if it were possible, contrary to the wording of that provision, for directives to be assimilated to regulations so that an action challenging a decision adopted in the form of a directive might be admissible, Directive 98/43 does not constitute a disguised decision and does not contain specific provisions which have the character of an individual decision. It is in fact a normative measure, since it applies in a general and abstract manner to all economic operators in the Member States who, from a specified date, fulfil the conditions it lays down, and since, furthermore, its application within the Member States requires its transposition into each national legal system by means of national implementing measures.

Second, while a legislative measure which applies to economic operators generally may be of direct and individual concern to some of them, that is not so with the directive in question. For the applicants to be directly concerned, the contested Community measure must directly affect their legal situation and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the Community rules alone without the application of other intermediate rules. Directive 98/43, which requires the Member States to impose obligations on economic operators, cannot of itself impose those obligations on the applicants, and is thus not such as to concern them directly. As a secondary point, the directive leaves the Member States a power of assessment, such that the applicants cannot be directly concerned by it. Accordingly, it does not of itself affect the legal situation of the applicants.

Finally, the action for annulment brought by the applicants cannot be declared admissible because of the lack of adequate judicial protection which is said to follow from the absence of national remedies which might allow the validity of the directive to be reviewed by means of a reference for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC), since the principle of equality of conditions of access to the Community judicature by means of an action for annulment requires that those conditions do not depend on the particular circumstances of the legal system of each Member State, and from the fact that a reference for a preliminary ruling is less effective than a direct action for annulment, since that circumstance, even if proved, could not entitle the Court of First Instance to usurp the function of the founding authority of the Community in order to change the system of legal remedies and procedures established by Articles 173 and 177 of the Treaty and by Article 178 of the EC Treaty (now Article 235 EC) and designed to give the Court of Justice and the Court of First Instance power to review the legality of acts of the institutions.

Moreover, it does not appear that the applicants are deprived of all right of recourse against the possible consequences of Directive 98/43. They may in any event, if they consider themselves to have suffered damage flowing directly from that measure, challenge it in proceedings for non-contractual liability under Article 178 of the Treaty and Article 215 of the EC Treaty (now Article 288 EC).

( see paras 27-28, 30, 52, 70-71, 74-75, 77 )

Parties

In Joined Cases T-172/98 and T-175/98 to T-177/98,

Salamander AG, established in Kornwestheim, Germany, represented by O.W. Brouwer, of the Amsterdam and Brussels Bars, and F.P. Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of M. Loesch, 11 Rue Goethe,

Una Film City Revue GmbH, established in Vienna, Austria, represented by R. Borgelt, Rechtsanwalt, Düsseldorf, assisted by M. Dauses, of the University of Bamberg, with an address for service in Luxembourg at the Chambers of Reding and Felten, 2 Rue Jean-Pierre Brasseur,

Alma Media Group Advertising SA & Co. Partnership,

Panel Two and Four Advertising SA,

Rythmos Outdoor Advertising SA,

Media Center Advertising SA,

all established in Athens, Greece, represented by H. Papaconstantinou, of the Athens Bar, É. Morgan de Rivery, of the Paris Bar, and J. Derenne, of the Paris and Brussels Bars, with an address for service in Luxembourg at the Chambers of A. Schmitt, 7 Val Sainte-Croix,

Zino Davidoff SA, established in Fribourg, Switzerland,

and

Davidoff & Cie SA, established in Geneva, Switzerland,

represented by R. Wägenbaur, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Arendt and Medernach, 8-10 Rue Mathias Hardt,

applicants,

supported by

Markenverband eV, established in Wiesbaden, Germany, represented by K. Bauer, Rechtsanwalt, Cologne, assisted by M. Dauses, of the University of Bamberg, with an address for service in Luxembourg at the Chambers of M. Loesch, 11 Rue Goethe,

and by

Manifattura Lane Gaetano Marzotto & Figli SpA, established in Valdagno, Italy, represented by L. Magrone Furlotti, of the Rome Bar, with an address for service in Luxembourg at the Chambers of A. Schmitt, 7 Val Sainte-Croix,

interveners in Case T-172/98,

and by

Lancaster BV, established in Amsterdam, Netherlands, represented by R. Wägenbaur, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Arendt and Medernach, 8-10 Rue Mathias Hardt,

intervener in Case T-177/98,

v

European Parliament, represented by C. Pennera, Head of Division in the Legal Service, and, in Cases T-172/98 and T-176/98, by M. Moore and, in Cases T-175/98 and T-177/98, by M. Berger, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the General Secretariat of the European Parliament, Kirchberg,

and

Council of the European Union, represented by R. Gosalbo Bono, Director of the Legal Service, and, in Case T-172/98, by A.P. Feeney and, in Cases T-175/98, T-176/98 and T-177/98, by S. Marquardt and A.P. Feeney, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of A. Morbilli, General Counsel of the Legal Affairs Directorate, European Investment Bank, 100 Boulevard Konrad Adenauer,

defendants,

supported by

Republic of Finland, represented by T. Pynnä, Legislative Adviser in the Ministry of Foreign Affairs, and H. Rotkirch, acting as Agents, with an address for service in Luxembourg at the Finnish Embassy, 2 Rue Heinrich Heine,

by

Commission of the European Communities, represented, in Cases T-175/98 and T-177/98, by U. Wölker and I. Martinez del Peral and, in Cases T-172/98 and T-176/98, by I. Martinez del Peral and M. Schotter, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

by

United Kingdom of Great Britain and Northern Ireland, represented by M. Ewing, acting as Agent, with an address for service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,

and by

French Republic, represented by K. Rispal-Bellanger, Head of Subdirectorate in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and R. Loosli-Surrans, Chargée de Mission, acting as Agents, with an address for service in Luxembourg at the French Embassy, 8B Boulevard Joseph II,

interveners,

APPLICATION for annulment of Directive 98/43/EC of the European Parliament and of the Council 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),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: K. Lenaerts, President, J. Azizi and M. Jaeger, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 25 November 1999,

gives the following

Judgment

Grounds

Legal background

1 Directive 98/43/EC of the European Parliament and of the Council 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, hereinafter the...