Keywords
Summary

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 )