• In the case of Case c 210 01 Swedish Match 2004 ECR I 11893, it was held that the use of Article 114 TFEU to harmonise laws to prevent disparities in nation rules is legitimate if disparities are to be likely.

Facts of the Case

  • The UK Court sought a preliminary ruling from the European Court of Justice concerning the validity of Council Directive 2001/37 Art.8.
  • (S) a company wished to market in the UK a finely cut tobacco to be intended for oral use.
  • Under Article.8 of the 2001 Directive, Member States were to prohibit tobacco for oral use.
  • Sweden however had been granted a derogation form the terms of Article.8.
  • S contended that the prohibition was unlawful and in breach of Community law and that its maintenance was disproportionate in relation to the objective.
  • The question then for the ECJ was aimed at determining whether the EC Treaty Art.95 constituted an appropriate legal basis for Article.8 of the 2001 Directive.

Issues in Case c 210 01 Swedish Match 2004 ECR I 11893

  • Was Article.8 valid and on the basis of Art.95 of the EC.

Held by European Court of Justice

  • Held that Article.8 of the 2001 Directive was valid and justified based on Art.95 of the EC.

Judge Skouris (President)

  • The prohibitions on the marketing of tobacco products were intended to stop the expansion of consumption of products which caused harm to health.
  • As such, they constituted obstacles to the free movement of goods.
  • Having a regard to the public’s growing awareness of the dangers to health of the consumption of tobacco products, it was likely that obstacles to the free movement of these products would arise by reason of the adoption by Member States of new rules intended to discourage consumption of those products.
  • “It should be borne in mind that, in a field which has been exhaustively harmonised at Community level, a national measure must be assessed in the light of the provisions of that harmonising measure and not of those of primary law
  • 82. Since the marketing of tobacco products for oral use is a question that is regulated in a harmonised manner at Community level, the national legislation at issue in the main proceedings which, duly transposing the Community legislation, prohibits the marketing of those products may thus be assessed with regard only to the provisions of that Community legislation, not to those of Articles 28 EC and 29 EC.
  • 83. In the light of the above considerations, the answer to Question 1 must be that, where a national measure prohibits the marketing of tobacco products for oral use in accordance with the provisions of Article 8 of Directive 2001/37, there is no need to ascertain separately whether that national measure complies with Articles 28 EC and 29 EC.” [81-82]

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