The Court of First Instance holds that the undertakings are not directly concerned by the directive
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" provides, in particular, that (subject to derogations) all forms of advertising of tobacco products are to be banned in the Community. The Member States must transpose the directive into national law by 30 July 2001 at the latest.
Salamander AG is a company incorporated under German law which manufactures shoes and boots. Since 1978 it has held a licence for the "Camel" trade mark which authorises it to manufacture and market footwear under the "Camel Boots" mark.
Una Film "City Revue" GmbH is a company incorporated under Austrian law whose activity consists in the distribution of advertising films in cinemas. It states that it is the sole contractual partner of Austria Tabak, an undertaking governed by Austrian law which holds exclusive rights over advertising messages for tobacco products in Austria.
The Alma Media group consists of companies incorporated under Greek law which sell advertising space in public places in Greek cities. They have 90% of the market in question, and are the largest undertakings in Greece which make advertising space available on hoardings provided for that purpose and on street furniture, those being the principal means of advertising tobacco products in Greece.
Zino Davidoff SA and Davidoff & Cie SA ("the Davidoff companies") are companies incorporated under Swiss law. Zino Davidoff SA holds the rights attached to the "Davidoff" trade mark outside the tobacco sector. As such it grants licences to other undertakings for the commercial exploitation of diversification products under the "Davidoff" and associated trade marks, such as cosmetic products and leather articles. Davidoff & Cie SA owns the rights attached to the "Davidoff" trade mark for tobacco products, including articles for smokers (lighters, cigar-cutters and humidors).
These companies, supported by Markenverband e.V, of Germany, Manifattura Lane Gaetano Marzotto & Figli SpA, of Italy, and Lancaster BV, of the Netherlands, sought the annulment of the directive of the European Parliament and the Council of the European Union, the Parliament and the Council being supported for their part by Finland, France, the United Kingdom and the Commission. 1
The Court of First Instance noted that the EC Treaty makes no provision, for the benefit of individuals, for a direct action before the Community judicature challenging a directive. The Court then found that the directive in question did not have the character of an individual decision as regards the companies concerned, but was a normative measure, since it applies in a general and abstract manner to all economic operators in the Member States and, furthermore, its application within the Member States requires its transposition into each national legal system by means of national implementing measures. Even though a directive is in principle binding only on its addressees (the Member States), it is generally an indirect means of legislating or regulating and has general scope.
The EC Treaty provides, moreover, that an action brought by an individual is admissible only if the measure or decision, addressed to another person, is of "direct and individual concern" to that individual.
A directive is indeed a legislative measure which applies to economic operators generally and may be of direct and individual concern to some of them.
The Court noted, however, that the condition that an individual must be directly concerned by the contested Community measure means that the measure must directly affect his legal situation.
The Court recalled that a directive cannot of itself impose obligations on an individual and may therefore not be relied on as such against him. A directive which requires the Member States to impose obligations on economic operators is therefore not of itself, before the adoption of the national transposition measures and independently of them, such as to affect directly the legal situation of those economic operators. The obligation to refrain from all advertising of tobacco products can arise only from the transposition measures adopted by the Member States.
The Court observed, finally, that the Member States are free to authorise advertising for products other than tobacco products which were marketed in good faith under the name of a tobacco product before 30 June 1998 (this applies to Salamander, the Davidoff companies and, in part, Una Film). For those products, any prohibition of advertising in a Member State would thus derive in any event not from the directive itself but from that Member State's discretionary decision not to make use of the possibility of obtaining a derogation under the directive.
In response to the companies' argument that there could be a lack of legal protection if the Court declared their applications inadmissible, the Court stated that it does not have jurisdiction to change the system of legal remedies, and may not depart from the conditions required in Community law for applications by natural or legal persons to be declared admissible.
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1 In October 1998 Germany also brought an action before the Court of Justice of the European Communities for annulment of the Community directive. In March 1999 the High Court of Justice of England and Wales made a reference to the Court of Justice for a preliminary ruling on the validity of the directive. On 15 June 2000 the Advocate General delivered his Opinion in those two cases before the Court of Justice, proposing that the directive should be annulled (Press Release No 45/2000). The Court of Justice has reserved judgment.