Order of the Court of First Instance (Third Chamber) of 30 April 2003. Villiger Söhne GmbH v Council of the European Union. Action for annulment - Manifest inadmissibility. Case T-154/02.

Ordonnance du Tribunal

Case T-154/02

Villiger Söhne GmbH
v
Council of the European Union

«(Action for annulment – Article 3, point 1, and Article 4(2), first indent of Directive 2002/10/EC – Structure and rate of excise duty applied on manufactured tobacco – Manifest inadmissibility)»

Order of the Court of First Instance (Third Chamber), 30 April 2003     

Summary of the Order

1.. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Council Directive 2002/10 amending Directives 92/79, 92/80 and 95/59 as regards the structure and rates of excise duty applied on manufactured tobacco – Amendment of the definition of cigars and cigarillos – Action by a company manufacturing and marketing the products concerned by that amendment – Inadmissible
(Art. 230, fourth para., EC; Council Directive 2002/10, Arts 3, point 1, and 4(2), first indent)

2.. European Communities – Judicial review of the legality of the acts of the institutions – Acts of general scope – Need for natural or legal persons to use the objection of illegality or a reference for a preliminary ruling seeking assessment of validity – Bringing of an action for annulment before the Community judicature where reference for a preliminary ruling ineffective – Excluded
(Arts 230, fourth para., EC, 234 EC and 241 EC)

1. For natural and legal persons to be regarded as individually concerned by a measure, it must affect their legal position by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee. A company which manufactures and markets in Member States including Germany, and in non-member countries, products which, for the purpose of determining the rate of excise duty applicable, were previously deemed to be cigars or cigarillos as defined in Article 3 of Directive 95/59, but which must henceforth be regarded under the amending Directive 2002/10 as cigarettes, the sale of which is subject to a far higher minimum excise duty than that applicable to cigars and cigarillos, is not individually concerned either by Article 3, point 1, of Directive 2002/10 amending Directives 92/79/EEC, 92/80/EEC and 95/59/EC as regards the structure and rates of excise duty applied on manufactured tobacco which alters the definition of cigars and cigarillos provided under Article 3 of Directive 95/59, or by the first indent of Article 4(2) of Directive 2002/10 which allows Germany a derogation from the time-limit for transposition of that Article 3, point 1. Those provisions of Directive 2002/10 concern that applicant company only by reason of its capacity as an economic operator active in the sector of manufacturing the products in question, in the same way as any other Community economic operator in the same situation. The amendment of the definition of cigars and cigarillos arising from Article 3, point 1, of Directive 2002/10 will affect not only the manufacturers of the products concerned but also all economic operators active in marketing them as well as consumers. The mere fact that in the preparation of a measure of general application, the Community legislature takes account of the fact that such a measure may have greater economic repercussions for certain categories of economic operators is not sufficient to characterise the latter in relation to other operators, because it is common ground that the measure concerns them in their objective capacity as economic operators present in the market in question. see paras 43-47, 51, 54

2. The fact that a reference for a preliminary ruling seeking an assessment of the validity of a Community measure of general scope would not be effective cannot justify changing, by judicial action, the system of remedies and procedures established by Articles 230, 234 and 241 EC, which is designed to give the Community judicature the power to review the legality of acts of the institutions. Such a circumstance cannot in any event allow an action for annulment brought by a natural or legal person who does not satisfy the conditions laid down by the fourth paragraph of Article 230 EC to be declared admissible. see para. 61

ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)
30 April 2003 (1)

((Action for annulment – Article 3, point 1, and Article 4(2), first indent of Directive 2002/10/EC – Structure and rate of excise duty applied on manufactured tobacco – Manifest inadmissibility))

In Case T-154/02,

Villiger Söhne GmbH, established at Waldshut-Tiengen (Germany), represented by B.Wägenbaur, lawyer,

applicant,

v

Council of the European Union, represented by F. Gijón and M. Simm, acting as agents,

defendant,

APPLICATION for the annulment of Article 3, point 1, of Council Directive 2002/10/EC of 12 February 2002 amending Directives 92/79/EEC, 92/80/EEC and 95/59/EC as regards the structure and rates of excise duty applied on manufactured tobacco (OJ 2002 L 46, p. 26) and, in the alternative, Article 4(2), first indent, of that directive,

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,

makes the following

Order
Legal context

1 The Community legislation relating to excise duty on manufactured tobacco is based mainly on three directives, namely Council Directive 92/79/EEC of 19 October 1992 on the approximation of taxes on cigarettes (OJ 1992 L 316, p. 8), Council Directive 92/80/EEC of 19 October 1992 on the approximation of taxes on manufactured tobacco other than cigarettes (OJ 1992 L 316, p. 10) and Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40).

2 For the purpose of determining the rate of excise duty applicable, Directive 95/59 gives exact definitions of the different types of manufactured tobacco, namely cigarettes, cigars or cigarillos and smoking tobacco. Article 3 of the Directive is worded as follows: The following shall be deemed to be cigars or cigarillos if they can be smoked as they are:

1. rolls of tobacco made entirely of natural tobacco;

2. rolls of tobacco with an outer wrapper of natural tobacco;

3. rolls of tobacco with an outer wrapper of the normal colour of a cigar, and a binder, of reconstituted tobacco, where at least 60% by weight of the tobacco particles are both wider and longer than 1.75 mm and where the wrapper is fitted in spiral form with an acute angle of at least 30 degrees to the longitudinal axis of the cigar;

4. rolls of tobacco with an outer wrapper of the normal colour of a cigar, of reconstituted tobacco, where the unit weight, not including filter or mouth-piece, is not less than 2.3 g and if at least 60% by weight of the tobacco particles are both wider and longer than 1.75 mm and the circumference over at least one third of the length is not less than 34 mm.

3 On 12 February 2002 the Council adopted Directive 2002/10/EC amending Directives 92/79/EEC, 92/80/EEC and 95/59/EC as regards the structure and rates of excise duty applied on manufactured tobacco (OJ 2002 L 46, p. 26). Pursuant to Article 3, point 1, of that Directive, points 3 and 4 of the definition of cigars and cigarillos in Article 3 of Directive 95/59 were replaced by the following wording:

3. rolls of tobacco with a threshed blend filler and with an outer wrapper of the normal colour of a cigar covering the product in full, including where appropriate the filter but not in the case of tipped cigars, the tip, and a binder, both being of reconstituted tobacco, where the unit weight, not including filter or mouth-piece, is not less than 1.2 g and where the wrapper is fitted in spiral form with an acute angle of at least 30 degrees to the longitudinal axis of the cigar;

4. rolls of tobacco with a threshed blend filler and with an outer wrapper of the normal colour of a cigar, of reconstituted tobacco, covering the product in full, including where appropriate the filter but not in the case of tipped cigars, the tip, where the unit weight, not including filter or mouth-piece, is not less than 2.3 g and where the circumference over at least one third of the length is not less than 34 mm

.

4 As a result of this amendment, a certain number of products ( the products in question) which, for the purpose of determining the rate of excise duty applicable, were previously deemed to be cigars or cigarillos, according to the definitions in Article 3 of Directive 95/59, were now, pursuant to Directive 2002/10, to be deemed cigarettes the sale of which is subject to a minimum rate of excise duty which is distinctly higher than that for cigars and cigarillos.

5 Under Article 4(1) of Directive 2002/10, the Member States are required to give effect to the Directive (including the amended definition of cigars and cigarillos in Article 3, point 1) by 1 July 2002 at the latest. However, Article 4(2), first indent, allows for a derogation in favour of the Federal Republic of Germany, which is authorised to give effect to the amended definition of cigars and cigarillos in Article 3, point 1, by 1 January 2008 at the latest. The 11th recital in the preamble to the Directive states that this postponement is in view of the economic difficulties that immediate implementation could cause for the German operators concerned.

Procedure and forms of order sought by the parties

6 The applicant, a German company which manufactures and markets the products in question in the Federal Republic of Germany and other Member States as well as non-member countries, brought the present action by application received by the Court Registry on 9 May 2002.

7 By a separate document received by the Court Registry on 25 July 2002, the defendant raised an objection of inadmissibility under Article 114 of the Rules of Procedure. The applicant submitted its observations on the objection on 10 September 2002.

8 By a document received by the Court Registry on 27 August 2002, the Commission sought leave to intervene in the action in support of the defendant. By documents received by the Court Registry on 20 September 2002, Cigar Coalition Europe eV and Badische Tabakmanufaktur Roth-Händle GmbH sought leave to intervene in the action in support of the applicant.

9 The applicant claims that the Court should:

─ annul Article 3, point 1, of Directive 2002/10, annul Article 3, point 1, of Directive 2002/10,

─ in the alternative, annul Article 4(2), first indent, of Directive 2002/10 in so far as that provision applies only to the Federal Republic of Germany and not to the other Member States and it provides that, so far as the Federal Republic of Germany is concerned, the Directive must be put into effect by 1 January 2008 at the latest; in the alternative, annul Article 4(2), first indent, of Directive 2002/10 in so far as that provision applies only to the Federal Republic of Germany and not to the other Member States and it provides that, so far as the Federal Republic of Germany is concerned, the Directive must be put into effect by 1 January 2008 at the latest;

─ order the defendant to pay the costs. order the defendant to pay the costs.

10 The defendant submits that the Court should:

─ dismiss the action as inadmissible; dismiss the action as inadmissible;

─ order the applicant to pay the costs. order the applicant to pay the costs.

Admissibility

11 Pursuant to Article 114(1) of the Rules of Procedure, where a party so requests, the Court may rule on admissibility without going into the substance of the case. Under Article 114(3), the remainder of the proceedings are to be oral unless the Court decides otherwise.

12 In the present case, the Court considers that the documents on the court file provide sufficient information to enable the Court to rule upon the request and that it is unnecessary to open the oral procedure.

Submissions of the parties

13 The defendant adduces three reasons to show that the applicant does not have the requisite capacity to bring proceedings and that the application is therefore inadmissible. Primarily, the defendant submits that the application is inadmissible in that it seeks the annulment of a directive. Second, the defendant considers that the application is inadmissible in so far as the applicant is not directly concerned by the amended definition of cigars and cigarillos arising from Article 3, point 1, of Directive 2002/10. Finally, the defendant considers that the application is inadmissible because the applicant is not individually concerned by the amendment.

Capacity to bring an action for the annulment of a directive

14 The defendant claims that the applicant does not have the requisite capacity to bring proceedings for the annulment of a directive such as that in issue in the present case.

15 The applicant disputes the claim that it does not have the capacity required to seek the annulment of a provision of a directive.

16 The applicant observes that the mere fact that the action is directed against a directive and not against a decision is not sufficient to consider that the action is inadmissible because the case-law shows that the term decision in the fourth paragraph of Article 230 EC must be understood in the technical sense and not the literal sense (see Joined Cases 16/62 and 17/62 Confédération nationale des producteurs de fruits et légumes and Others v Council [1962] ECR 471, 478). The applicant adds that the Court of Justice and Court of First Instance have repeatedly held that an individual may bring an action under the fourth paragraph of Article 230 EC for the annulment of a provision of a directive provided that he is directly and individually affected by it (Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraphs 11 to 32; the orders in Case 65/87 R Pfizer v Commission [1987] ECR 1691; Case 352/87 Farzoo and Kortmann v Commission [1988] ECR 2281; Case 160/88 R Fédération Européenne de la Santé Animale and Others v Council [1988] ECR 4121, paragraphs 25 to 28; Case 138/88 Flourez and Others v Council [1988] ECR 6393; the judgments in Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraphs 11 to 13; Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501, paragraphs 13 to 18; Case C-298/89 Gibraltar v Council [1993] ECR I-3605, and Case C-309/89 Codorniu v Council [1994] ECR I-1853; the order in Case T-99/94 Asocarne v Council [1994] ECR II-871; the judgment in Joined Cases T-172/98 and T-175/98 to T-177/98 Salamander and Others v Council [2000] ECR II-2487, paragraph 30, and the order in Case T-84/01 Association contre l'heure d'été v Parliament and Council [2002] ECR II-99, paragraph 23).

17 In this connection, the applicant considers that defendant's argument is based on a mistaken premiss, namely that the present action seeks the annulment of Directive 2002/10 in its entirety. However, the applicant points out that, as the application clearly shows, only the annulment of Article 3, point 1 and, in the alternative, Article 4(2), first indent, of Directive 2002/10 is being sought. The applicant adds that it can be inferred from the judgment in the case of Confédération Nationale des Producteurs de Fruits et Légumes and Others v Council, cited in paragraph 16 above, that the wording of each provision of the contested measure must be examined rather than the measure as a whole. It was unnecessary to assess the whole of Directive 2002/10 in so far as Article 3, point 1, on the one hand, and the other provisions, on the other hand, did not form a legislative whole because the definitions of the different types of manufactured tobacco, which were amended by the said Article 3(1), were independent of the other provisions of Directive 2002/10, which relate to the rate and structure of excise duty. According to the applicant, this was confirmed by the fact that, originally, the definitions of the different types of manufactured tobacco were given in a specific directive, namely Council Directive 79/32/EEC of 18 December 1978 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1979 L 10, p. 8). Furthermore, it considers that an overall assessment of Directives 92/79, 92/80 and 95/59 is not possible in the framework of Directive 2002/10 because, unlike Directives 92/79 and 92/80, which provide for a review procedure at regular intervals of the structure and the minimum rate of excise duty, Directive 95/59 makes no mention of such a procedure in relation to the definitions of the different types of manufactured tobacco which it lists. In addition, the applicant considers that the Court's decision in Joined Cases 103/78 to 109/78 Usines de Beaufort and Others v Council [1979] ECR 17, which is cited by the defendant, cannot be applied to the present case because the facts of the earlier case are very different from those here.

18 Finally, the applicant rejects the defendant's argument that the present application is inadmissible because it is still open to the applicant to have the legality of Directive 2002/10 reviewed by means of a reference for a preliminary ruling pursuant to Article 234 EC. The applicant observes that this procedure is not equivalent to a direct action before the Court of First Instance pursuant to the fourth paragraph of Article 230 EC in so far as it is a step in an action before a national court. The applicant adds that the scope for a national court to request a preliminary ruling from the Court of Justice differs appreciably from one Member State to another and, moreover, entails a considerable delay. Finally, the applicant considers that the theoretical nature of a reference for a preliminary ruling from the Court of Justice and the impossibility of bringing direct action before the Community Courts are contrary to the principle of judicial protection and the principle of the rule of law laid down in Article 6 EU.

Direct effect

19 The defendant claims that the applicant is not directly concerned by the contested provisions. It observes that, according to case-law, for an individual to be directly affected, the Community measure challenged must directly produce effects on his legal position and leave no discretion to the addressees of that measure who are entrusted with its implementation, that being a purely automatic matter flowing solely from the Community legislation without the application of other intermediate rules (Case C-404/96 P Glencore Grain v Commission [1998] ECR I-2435, paragraph 41). However, according to the defendant, none of those conditions is fulfilled in the present case.

20 The applicant denies the assertion that it is not directly concerned by the amendment to the definition of cigars and cigarillos arising from Article 3, point 1, of Directive 2002/10.

21 First of all, it observes that the defendant failed to take into account, in its pleadings, the fact that Article 3, point 1, differs appreciably from the provisions of the directives and regulations on which the Community Courts have hitherto delivered judgment. The applicant observes that, in so far as that measure entails such an increase in the tax burden on the products in question that they are no longer competitive in comparison with cigarettes and cigarillos, it has the de facto effect of prohibiting the marketing of those products. The applicant stresses that this de facto prohibition has been in force in fourteen Member States of the Community since 1 July 2002 and that it will be in force in Germany from 1 January 2008.

22 Second, the applicant considers that the two conditions required for a finding of direct effect, namely that the addressee of the measure responsible for implementing it should have no discretion and that the applicant's legal position should be affected (Case C-386/96 P Dreyfus v Commission [1998] ECR I-2309, paragraph 43) are fulfilled in the present case.

23 With regard to the first condition, the applicant observes, first, that in the present case the contested provision leaves no margin of discretion to the Member States responsible for implementing it. Article 3, point 1, of Directive 2002/10 contained an exact definition of the terms cigars and cigarillos and the Member State had an obligation to repeat that definition in their national legislation so as to fulfil their obligation to implement the Directive. According to the applicant, the fact that the Member States had no discretion with regard to giving effect to the definitions of the different types of manufactured tobacco laid down by Directive 2002/10 was confirmed by the fact that, as was clear from the second paragraph of Article 8 of Directive 95/59 and the judgment in Case C-302/00 Commission v France [2002] ECR I-2055, all tobacco products of the same category had to be taxed uniformly. Finally, the applicant contends that, because the Member States have no discretion, it must be concluded that, in substance, Article 3, point 1, of Directive 2002/10 is in reality a provision of a regulation adopted in the guise of a directive. In this connection the applicant observes that the defendant is wrong in asserting that, from a formal viewpoint, Article 3, point 1, of Directive 2002/10 forms part of a directive because, according to settled case-law, the legal nature of a measure does not depend only on its official description, but must take account first of its purpose and content ( Confédération Nationale des Producteurs de Fruits et Légumes v Council, cited in paragraph 16 above).

24 In addition, the applicant considers that the principle, mentioned in the judgment in the case of Salamander and Others v Parliament and Council, cited in paragraph 16 above (paragraph 54), that individuals cannot bring an action for the annulment of directives before they are implemented in national law if, before implementation, they are not such as affect those individuals directly, is not relevant to the question of the admissibility of the present action. The applicant observes that such a principle cannot be applied to the present case because, in substance, the contested provision is of the nature of a regulation. Such application would also be contrary to the settled case-law of the Court of Justice and the Court of First Instance to the effect that, in order to classify a measure, regard must be had to its content rather than its form. The applicant adds that, as a general rule, the period for implementing a directive has not yet expired when the two-month time-limit laid down in the fifth paragraph of Article 230 comes to an end (as is the case here), so that, when an action is brought against a directive, there has still been no implementation measure, particularly as, for most directives, the time-limits for implementation are much longer than here. Consequently the applicant takes the view that the principle mentioned in the case of Salamander and Others v Parliament and Council, cited above, has the effect that actions brought by individuals against directives are always inadmissible, which is contrary to the case-law. Finally, the applicant observes that, unlike the present case, the abovementioned judgment concerned a provision in a measure which in form and wording was a directive.

25 With regard to the requirement concerning the effect on its legal situation, the applicant contends, first, that, according to the case-law of the Court of First Instance, the legal situation of individuals is affected if the disputed measure leaves no discretion to the national authorities of the Member States responsible for implementing it (Case T-47/00 Rica Foods v Commission [2002] ECR II-113, paragraphs 32 to 37). Therefore the applicant considers that, as it pointed out above, its legal situation is affected because the contested provision leaves no discretion to the national authorities.

26 In addition, the applicant notes that, even if the question of the effect on its legal situation had to be examined independently of the question of a discretion of the national authorities, the former requirement is met in the present case in so far as Article 3, point 1, of Directive 2002/10 affects its legal position vis-à-vis the competent tax authorities in question because the amended definition of cigars and cigarillos laid down by the said provision will oblige the applicant to pay, for the marketing of the products in question which it manufactures, the excise duty applying to cigarettes rather than that applying to cigars and cigarillos which it paid previously. Furthermore, it was clear from Articles 5(1) and 6(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1) and Article 9 et seq. of Directive 95/59 that the manufacturer is the person liable for excise duty on manufactured tobacco. According to the applicant, that status was changed by Directive 2002/10 because, with regard to the products in question, the applicant's status had changed from that of a person liable for excise duty on cigars and cigarillos to that of a person liable for excise duty on cigarettes. The applicant also considers that the defendant is mistaken in claiming that it is ultimately the consumer who pays the excise duty on the products in question because the different directives relating to excise duty on tobacco do not refer to the legal status of the consumer.

27 Moreover, the applicant observes that its legal position is affected in so far as the amended definition of cigars and cigarillos will give rise to an additional charge to tax by the national authorities on stocks of the products in question which the applicant has already marketed. It adds that it will not be able to pass on the additional tax to consumers. Finally, it considers that its legal position is affected in so far as the amended definition arising from Article 3, point 1, of Directive 2002/10, because of its serious economic consequences, infringes the applicant's property rights. In particular, first, the applicant would have to make provisions to meet the additional tax arising from the amendment, second, the de facto discontinuation of exports of the products in question to fourteen Member States from 1 July 2002 would lead to considerable excess capacity which would increase still more when the amendment takes effect in the Federal Republic of Germany on 1 January 2008 and, third, the investments which the applicant had made in research and development connected with the products in question had been to no purpose.

28 On this point, the applicant rejects the defendant's argument that the amended definition causes it only economic damage. According to the applicant, this argument disregarded, first, the fact that the amendment entailed a de facto prohibition of sale which, as the judgment in Case 5/88 Wachauf [1989] ECR 2609 showed, is incompatible with the protection of fundamental rights and, second, that the amendment entailed a retrospective charge to tax by the tax authorities. Likewise the applicant denies the defendant's assertion that the amendment to the definition had not produced any consequences at the date when the present action was brought. The applicant observes that, when the amendment was adopted, it had already been established that, because of the date in Directive 2002/10, the legal consequences would materialise shortly afterwards, namely on 1 July 2002. The applicant adds that, in any case, there was no advantage in knowing whether the legal consequences of the amendment arising from Directive 2002/10 would materialise on the deadline fixed for implementing it or at a later date in so far as, in the present case, it had been established that those consequences would supervene (Case T-46/90 Devillez and Others v Parliament [1993] ECR II-699, paragraphs 13 and 14).

Individual effect

29 The defendant claims that the directive is not of individual concern to the applicant in the sense in which that term is interpreted by settled case-law (Case 25/62 Plaumann v Commission [1963] ECR 95).

30 The applicant denies the claim that the amendment to the definition of cigars and cigarillos arising from Article 3, point, 1, of Directive 2002/10 is not of individual concern to the applicant.

31 To begin with, it considers that the provision is of individual concern to it in the sense in which that term is interpreted by settled case-law ( Plaumann v Commission, cited in paragraph 29 above).

32 In the first place, the applicant observes that it forms part of the group of six enterprises which manufacture and market the products in question in the Community and that the German manufacturers of those products together have 80% of the market shares in question (the applicant having 5%). It points out that the said group of manufacturers had already been formed at the time when Directive 2002/10 was adopted and that the group will tend to grow smaller in so far as the products in question cease to be competitive because of the increase in excise duty. On this point the applicant disputes the defendant's allegation that the group cannot be determined because it is possible that certain enterprises will stop manufacturing the products in question and that others will expand their operations in that sector. According to the applicant, the defendant's allegation disregards the consequences which the amended definition will have for the applicant, namely it will no longer be able to sell the products in question in fourteen Member States from 1 July 2002 and in Germany from 1 January 2008.

33 Secondly, the applicant considers that the settled case-law that a Community measure retains its legislative nature even if it is possible to determine more or less precisely the number or even the identity of the persons to whom it applies at a given time (Case 123/77 UNICME and Others v Council [1978] ECR 845) is not applicable to the present case because the latter differs fundamentally from the situations in which that case-law has been relied upon. The applicant observes that in the present case the Community legislature itself has clearly differentiated one group of undertakings in relation to all other manufacturers in so far as, in the 10th and 11th recitals in the preamble to the directive, it accepted that the amended definition of cigars and cigarillos was of particular concern, legally and economically, to the group of German manufacturers to which the applicant belongs. In this connection the applicant refers to the settled case-law which states that measures imposing an anti-dumping duty are liable to be of direct and individual concern to producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations (Case 113/77 NTN Toyo Bearing and Others v Council [1979] ECR 1185, paragraph 11; Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005; Joined Cases C-133/87 and C-150/87 Nashua Corporation and Others v Commission and Council [1990] ECR I-719, paragraph 14; Case T-155/94 Climax Paper v Council [1996] ECR II-873, paragraph 46). According to the applicant, in this connection it does not matter that the three German enterprises of which it is one are described as German operators rather than identified individually. In either case, they are differentiated by virtue of a Community legislative measure. The applicant also considers that it does not matter that the Community legislature used a generic term to designate the enterprises concerned, rather than designate them by name, because the term refers to German enterprises whose names were known to the Community legislature. In this connection the applicant adds that regard should be had to the substance of the term rather than its form because otherwise the Community legislature could deprive an applicant of legal protection by differentiating him by means of a generic term rather than by his name. Finally, the applicant asserts that, contrary to the defendant's submissions, the term German operators refers only to the manufacturers of the products in question and not to all the persons involved in marketing them because consumers and dealers are not persons liable for tax within the meaning of the relevant legislation.

34 Third, the applicant considers that the amendment to the definition of cigars and cigarillos arising from Article 3, point, 1, of Directive 2002/10 is of individual concern to the applicant in so far as the measure affects it very seriously ( Extramet Industrie v Council, cited in paragraph 16 above, paragraph 17) because the amendment has very important consequences for its economic activity.

35 Fourth, the applicant points out that, in the judgment in Case 118/77 ISO v Council [1979] ECR 1277, the Court found that an enterprise which belongs to an individually concerned group of the major producers of a particular product may, as an individual applicant, bring an action against a provision of a Community measure while remaining individually concerned. The applicant contends that that is the case here because it belongs to the limited group of the major producers of the products in question.

36 Fifth, the applicant considers that the condition laid down by the Court of First Instance in the judgment in Case T-16/91 Rendo and Others v Commission [1996] ECR II-1827, namely that only those parts of a legal measure can be contested on the basis of individual concern which also form the subject-matter of complaints does not invalidate the conclusion that the applicant is individually concerned. It points out that it is not seeking the annulment of Directive 2002/10 in its entirety but only the annulment of Article 3, point 1, and in the alternative, Article 4(2), first indent, as the form of order sought made clear.

37 The applicant adds that the contested provision is of individual concern to the applicant in the sense in which that condition was interpreted by Advocate General Jacobs in Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, I-6681, and by the Court of First Instance in Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365, paragraph 51. In accordance with the interpretation suggested by Advocate General Jacobs, the amendment to the definition of cigars and cigarillos arising from Article 3, point 1, of Directive 2002/10 was of individual concern to the applicant in so far as the amendment is causing and will cause substantial damage to the applicant's interests as a result of the increased prices of the products in question. Likewise the applicant observes that, in accordance with the Court's interpretation, the amendment is of individual concern in so far as it will oblige the applicant to pay the tax authorities higher excise duty on the products in question.

Assessment by the Court

38 First of all, it is necessary to examine the defendant's argument that the present action is inadmissible because the applicant, as a legal person, does not have the capacity required to seek the annulment of a provision of a directive under the fourth paragraph of Article 230 EC.

39 On this point it must be observed that, although the fourth paragraph of Article 230 does not deal expressly with the admissibility of actions brought by natural or legal persons for the annulment of a directive or provisions of a directive, it is clear from the case-law of the Court of Justice and the Court of First Instance that that circumstance is in itself not sufficient to render such actions inadmissible ( Gibraltar v Council, cited in paragraph 16 above; Salamander and Others v Parliament and Council, cited in paragraph 16 above, paragraph 30; see also the orders in Asocarne v Council, cited in paragraph 16 above, and Association contre l'heure d'été v Parliament and Council, cited in paragraph 16 above, paragraph 23).

40 Moreover, it has consistently been held that a legislative measure which applies to economic operators generally may be of direct and individual concern to some of them ( Piraiki-Patraiki and Others v Commission, paragraphs 11 to 32; Sofrimport v Commission, paragraphs 11 to 13; Extramet Industrie v Council, paragraphs 13 to 18; Codorniu v Council, paragraphs 19 to 22, and Salamander and Others v Parliament and Council, paragraph 30, all cited in paragraph 16 above).

41 It follows that the mere fact that the contested provisions form part of a directive is not sufficient in itself to exclude the possibility that an action brought by the applicant for their annulment might be admissible.

42 Therefore it is necessary to ascertain whether Article 3, point 1 and Article 4(2), first indent, of Directive 2002/10 are of direct and individual concern to the applicant in this case.

43 In this connection, it must be concluded that those provisions are manifestly not of individual concern to the applicant, without it being necessary to determine whether they are of direct concern to it.

44 It has consistently been held that, for natural and legal persons to be regarded as individually concerned by a measure, it must affect their legal position by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee ( Plaumann v Commission, cited in paragraph 29 above, and Case C-451/98 Antillean Rice Mills v Council [2001] ECR I-8949, paragraph 49). This interpretation of individual concern was recently confirmed by the Court of Justice in the Unión de Pequeños Agricultores judgment cited in paragraph 37 above (paragraph 36).

45 In the present case it must be observed, first, that Article 3, point 1, of Directive 2002/10 amends the definition of cigars and cigarillos laid down in Article 3 of Directive 95/59. As a result of this amendment, the products in question, which were previously deemed to be cigars or cigarillos for the purpose of determining the rate of excise duty applicable, must now be deemed to be cigarettes pursuant to Directive 2002/10. This results in an appreciable increase in the minimum rate of excise duty which applies to them.

46 The purpose of Article 4(2), first indent, of Directive 2002/10 is to provide for a derogation in favour of Germany with regard to the period for implementing Article 3, point 1.

47 These provisions manifestly concern the applicant only by reason of its capacity as an economic operator active in the sector of manufacturing the products in question, in the same way as any other Community economic operator in the same situation. It is clear from the case-law that such capacity alone is not sufficient to establish that the applicant is individually concerned by those provisions ( Piraiki-Patraiki and Others v Commission, cited in paragraph 16 above, paragraph 14; Antillean Rice Mills v Council, cited in paragraph 44 above, paragraph 51; the orders in Case C-276/93 Chiquita Banana and Others v Council [1993] ECR I-3345, paragraph 12, and Asocarne v Council, cited in paragraph 16 above, paragraph 42).

48 In this connection, it does not matter that the products in question are manufactured in the Community by only six enterprises and that the applicant belongs to the group of German manufacturers of the products in question who together hold 80% of the market shares concerned.

49 It must be observed that, in accordance with settled case-law, the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as it is established that the application takes effect by virtue of an objective legal or factual situation defined by the measure in question (orders in Case C-131/92 Arnaud and Others v Council [1993] ECR I-2573, paragraph 13, and Chiquita Banana and Others v Council, cited in paragraph 47 above, paragraph 8).

50 Furthermore, contrary to the applicant's argument, the group of manufacturers concerned was not closed at the time of the adoption of Directive 2002/10 because, as the defendant correctly points out, there is nothing in the Directive to rule out the possibility that economic operators who did not manufacture the products in question before the Directive was adopted might decide to do so after that date.

51 In addition, the amendment to the definition of cigars and cigarillos arising from Article 3, point 1, of Directive 2002/10 will not affect only the manufacturers of the products in question. As the applicant admits, the resulting increase in the minimum rate of excise duty for those products will also affect all economic operators active in marketing them as well as consumers. In this connection, however, the applicant's assertion that the situation of the manufacturers of the products in question is not comparable with that of consumers and distributors of those products because, according to the relevant legislation, only manufacturers have the legal status of persons liable for excise duty must be rejected. Even if that were shown to be the case it would not, on its own, be sufficient to distinguish such manufacturers individually, given that the fact that a legal provision may have different specific effects on the various persons to whom it applies is not inconsistent with its nature as a measure of general application when that situation is objectively defined (Case 101/76 Koninklijke Scholten Honig v Council and Commission [1977] ECR 797, paragraph 24, and the order in Case C-96/01 P Galileo and Galileo International v Council [2002] ECR I-4025, paragraph 41).

52 In the second place, the applicant is wrong in claiming that the measure is of individual concern to it in so far as it belongs to the group of German operators concerned whose particular concern is mentioned in the 11th recital in the preamble to Directive 2002/10.

53 It must be observed that, as the defendant correctly notes, there is nothing in the Directive to indicate that the phrase German operators concerned refers only to the manufacturers of the products in question and not all the operators involved in the manufacture and/or marketing of those products in Germany.

54 Next, the mere fact that, in the preparation of a measure of general application, the Community legislature takes account of the fact that such a measure may have greater economic repercussions for certain categories of economic operators is not sufficient to characterise the latter in relation to other operators, because it is common ground that the measure concerns them in their objective capacity as economic operators present in the market in question.

55 Furthermore, the applicant is wrong in referring to the case-law to the effect that measures imposing anti-dumping duties are of individual concern to producers and exporters who can show that they are identified in the measures adopted by the Commission and the Council or were involved in the preliminary investigations ( Allied Corporation and Others v Commission, cited in paragraph 33 above, and Nashua Corporation and Others v Commission and Council, cited in paragraph 33 above, paragraph 14) as well as to importers whose resale prices were taken into account for the construction of export prices and who are therefore concerned by the findings relating to the existence of dumping ( ISO v Council, cited in paragraph 35 above, paragraph 15, and Allied Corporation and Others v Commission, cited in paragraph 33 above, paragraph 15). It must be observed that this case-law, which was developed in the context of actions against regulations imposing anti-dumping duties, is justified by the fact that the dumping legislation expressly requires the Commission and the Council to take account of the data from the said enterprises in order to establish the dumping practices which have been found. Likewise it cannot be denied that the amendment to the definition of cigars and cigarillos contested by the applicants was not established on the basis of data relating to the applicants' situation and concerns them only in their objective capacity as economic operators present in the market.

56 Third, it is necessary to dismiss the applicant's argument that it is individually concerned because its economic situation is seriously affected by the amendment to the definition of cigars and cigarillos arising from Article 3, point 1, of Directive 2002/10 and that therefore the applicant is in a situation comparable to that of the applicant in the case of Extramet Industrie v Council, cited in paragraph 16 above.

57 It must be observed that, in that judgment, the Court of Justice accepted that the applicant had established the existence of a set of factors constituting such a situation which was peculiar to the applicant and which differentiated it, as regards the measure in question, from all other traders. The applicant had proved that it was the largest importer of the product forming the subject-matter of the anti-dumping measure and, at the same time, the end-user of the product. In addition, its business activities depended to a very large extent on those imports and were seriously affected by the contested regulation in view of the limited number of manufacturers of the product concerned and of the difficulties which the applicant encountered in obtaining supplies from the sole Community producer, which, moreover, was its main competitor for the processed product ( Extramet Industrie v Council, cited in paragraph 16 above, paragraph 17).

58 In the present case, however, the applicant has not established the existence of factors of that kind. On the contrary, as the defendant has correctly pointed out, the extent of the repercussions which the amendment to the definition of cigars and cigarillos arising from Article 3, point 1, of Directive 2002/19 is likely to have on the applicant's economic situation remains uncertain because it depends on the rate of excise duty which will finally be fixed by the Member States when implementing the Directive, as they are only required to respect the minimum rates laid down by the Community legislation. Moreover, the applicant has not supported its allegations regarding the alleged retrospective taxation, by reason of the amended definition of cigars and cigarillos, which will be imposed by the national authorities in relation to the products in question which have already been marketed.

59 It follows from all the foregoing considerations that Article 3, point 1, and Article 4(2), first indent, of Directive 2002/10 are not of individual concern to the applicant.

60 It must be added that it would be possible for an economic operator in a position like that of the applicant, and whose situation is affected by the amendment to the definition of cigars and cigarillos arising from measures adopted by a Member State for implementing Directive 2002/10, to seek a review of the validity of the Directive in an action challenging such measures before the courts of the Member State. The action could then give rise to a reference for a preliminary ruling to assess the validity of the Directive pursuant to Article 234 EC.

61 Contrary to the applicant's argument, the circumstance that that remedy would not be effective in the present situation, assuming it to be established, cannot constitute authority for changing, by judicial action, the system of remedies and procedures established by Articles 230, 234 and 241 EC, which is designed to give the Community judicature the power to review the legality of acts of the institutions ( Unión de Pequeños Agricultores v Council, cited in paragraph 37 above, paragraph 40). Such a circumstance cannot in any event allow an action for annulment brought by a natural or legal person who does not satisfy the conditions laid down by the fourth paragraph of Article 230 EC to be declared admissible (see the order in Case C-301/99 P Area Cova and Others v Council [2001] ECR I-1005, paragraph 47 and the cases cited).

62 It follows from the foregoing that the applicant does not have the capacity required to bring an action for the annulment of Article 3, point 1, and Article 4(2), first indent, of Directive 2002/10 and therefore the present application must be dismissed as inadmissible.

Costs

63 Pursuant to Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the applicant has failed in its pleadings, it must be ordered to pay the costs, in accordance with the form of order sought by the defendant.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant is ordered to pay the costs.

3. It is unnecessary to give a decision on the applications to intervene.

Luxembourg, 30 April 2003.

H. Jung

K. Lenaerts

Registrar

President

1 – Language of the case: German. Top

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