• The case of Case C-491/01 R v. Secretary of State ex parte BAT and Imperial Tobacco [2002] ECR I-11453, paras 28-41, concerned Article 260 (now Article 263 TFEU) – what the European Court of Justice can review. This includes legislative acts, Council acts, etc. This case specifically established that the Court is able to review the validity of Community law that has not yet been implemented through requesting the national court to make preliminary reference to the CJEU.

Facts of Case C-491/01 R v. Secretary of State ex parte BAT and Imperial Tobacco [2002] ECR I-11453, paras 28-41

  • EU Directive 2001/37/EC was amended and extended the rules governing tar yields of cigarettes, and the warnings on tobacco products
  • The legal basis being Article 95 EC – preventing the circumventing of internal market provisions of products exported to non-member countries  
  • The Cs, UK-based tobacco manufacturers British American Tobacco, contested the validity of the measure
  • The European Commission and the French Government observed that such should be inadmissible due to:
    • the proceedings for preliminary reference being made before implementation of the measure, and
    • accepting admissibility for preliminary reference on the validity of the Directive would be as good as circumventing the requirements of Article 260 EC (now Article 263 TFEU)

Issues in Case C-491/01 R v. Secretary of State ex parte BAT and Imperial Tobacco [2002] ECR I-11453, paras 28-41

  • Were the Commission and the French Government correct in their argument against accepting the preliminary reference as admissible?

Held by the European Court of Justice

  • It was admissible. Individuals may plead the invalidity of Community law before national courts without the need of the measure’s adoption into national law.

Findings of the Court

It need not matter if the matter concerned is directly applicable or not, “Under Article 234 EC the Court has jurisdiction to give preliminary rulings concerning the validity and interpretation of acts of the Community institutions, regardless” [32]

In respect of the main proceedings possibly being “tantamount to circumventing the requirements of Article 230 EC” [39], the CJEU found:

  • Natural or legal persons should be able to indirectly plead the invalidity of measures under Article 241, or be able to request national courts to make preliminary reference to the CJEU when they cannot otherwise do so under the rules of admissibility under Article 230 [39]

Therefore, “it is sufficient if the national court is called upon to hear a genuine dispute in which the question of the validity of such an act is raised indirectly” without the measure being transposed and adopted by national law [40]

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