Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01

Philip Morris International, Inc. and Others

v

Commission of the European Communities

‛Decision to bring legal proceedings before a court in a nonmember State — Action for annulment — Concept of decision for the purposes of the fourth paragraph of Article 230 EC — Admissibility’

Judgment of the Court of First Instance (Second Chamber, Extended Composition), 15 January 2003   II-4

Summary of the Judgment

1. Action for annulment — Actionable measures — Measures producing binding legal effects — Decision to bring legal proceedings — Not included

   (Art. 230 EC)

2. Action for annulment — Actionable measures — Measures not producing binding legal effects — Not included — Measure implying assumption of competence which may be incompatible with the institutional balance — Irrelevant

   (Art. 230 EC)

3. Community law — Principles — Right to a judicial remedy — Assessment — Inadmissibility of an action for annulment brought in respect of conduct of a Community institution which lacks the features of a decision — Possible for individuals to challenge the legality of such conduct by way of an action for non-contractual liability of the Community

   (Arts 230, fourth para., EC, 235 EC and 288, second para., EC; European Convention of Human Rights, Arts 6 and 13)

1.  The decisions by which the Commission approved, first, the principle of a civil action, in the name of the Commission, against certain American cigarette manufacturers and, second, the principle of a new civil action in the US courts, jointly by the Community and at least one Member State, against those same parties, do not produce legal effects which are binding on, and capable of affecting the interests of, those manufactures by bringing about a distinct change in their legal position. Accordingly, they are not acts which may be the subject of an action for annulment.

   Although the commencement of proceedings constitutes an indispensable step for the purpose of obtaining a binding judgment and may produce as a matter of law certain consequences, such as the interruption of a limitation period or the determination of the starting point for interest owing, it does not per se determine definitively the obligations of the parties to the case. That determination can result only from the judgment of the court, be it the Community court or a national court. When it decides to commence proceedings, the Commission does not intend itself to change the legal position in question, but merely initiates a procedure whose purpose is to achieve a change in that position through a judgment.

   (see paras 75-81)

2.  Any act of a Community institution carries an implication that the institution in question has adopted a position as to its competence to adopt it. The adoption of such a position cannot, however, be viewed as a binding legal effect for the purposes of Article 230 EC.

   Even if the position adopted is erroneous, it has no significance independent of the act adopted and, unlike an act designed to confer competence, is not intended to alter the division of powers provided for by the Treaty.

   However serious the defects which might vitiate a measure may be, having regard to either the fundamental rights or the institutional balance, they cannot justify an exception to the absolute bars to proceedings and render open to challenge measures which are not contestable because they do not produce binding legal effects. It cannot be concluded that an act is open to challenge because it may be unlawful.

   (see paras 85-91)

3.  Access to justice is one of the constitutive elements of a Community based on the rule of law and is guaranteed in the legal order based on the EC Treaty in that the Treaty has established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions. The constitutional traditions common to the Member States and Articles 6 and 13 of the European Convention of Human Rights serve as a basis for the right to obtain an effective remedy before a competent court.

   Individuals are not denied access to justice because conduct lacking the features of a decision cannot be challenged by way of an action for annulment, since an action for non-contractual liability under Article 235 EC and the second paragraph of Article 288 EC is available if the conduct is of such a nature as to entail liability for the Community.

   Although it may seem desirable that individuals should have, in addition to the possibility of an action for damages, a remedy under which actions of the Community institutions liable to prejudice their interests but which do not amount to decisions may be prevented or brought to an end, it is clear that a remedy of that nature, which would necessarily involve the Community judicature issuing directions to the institutions, is not provided for by the Treaty. It is not for the Community judicature to usurp the function of the founding authority of the Community in order to change the system of legal remedies and procedures established by the Treaty.

   (see paras 121-124)