Case C-131/03 P, Reynolds Tobacco and Others v Commission

A lot of interesting cases today, on some of which I will return later. Let’s start with Reynolds Tobacco.

This appeal inter alia concerned the question whether the decision by a Community institution to commence proceedings could be considered to be a decision which was open to challenge under Article 230 EC.

The case concerned decisions taken by the Commission to bring actions for damages, in the United States, against certain tobacco companies. The Court of First Instance dismissed a challenge to those decisions as inadmissible, essentially on the ground that they lacked binding legal effects for the companies.

The appellants now inter alia alleged error in the assessment of such effects and violation of their right to effective judicial protection

The Council submitted in intervention that although a decision of the kind in issue could never be challenged by the individuals concerned, it could be challenged by privileged applicants under Article 230 EC in so far as it could produce binding legal effects for them.

The Court dismissed the aforementioned pleas. It reiterated that only measures the legal effects of which were binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position were acts or decisions which might be the subject of an action for annulment.

Therefore, not only preparatory acts fell outside the scope of the judicial review provided for in Article 230 EC, but any act not producing legal effects which were binding on and capable of affecting the interests of the individual, such as confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions

Accordingly, the Court of First Instance did not err in law by inferring from the fact that the contested decisions did not produce binding legal effect for the purposes of Article 230 EC that they could not be the subject of an action without restricting the scope of that approach to preparatory acts.

The Court also argued that, although it was true that the Treaty established a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions and had entrusted such review to the Community courts, this did not mean that, such an interpretation could not have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the Community courts

The decision by a Community institution to commence proceedings was not part of the system of review of the legality of Community acts with legal effects which were binding on, and capable of affecting the interests of, the applicant, but it was available where a party had suffered harm on account of unlawful conduct by an institution.

The fact that the appellants might be unable to establish the existence of unlawful conduct on the part of the Community institutions, of the damage alleged and of a causal link between such conduct and such loss did not mean that they were denied effective judicial protection.

Text of Judgment