• In the case of Case C-491/01 ex parte British American Tobacco [2002], it was established that the existing harmonising legislation will not act as a hurdle or obstacle to develop new amendments in light of new discovery, e.g. scientific developments. The adoption of new/different amendments will increase the consciousness on the issue(s) provisions are aiming to control.

Facts of Case C-491/01 ex parte British American Tobacco [2002]

  • EU Directive 2001/37/EC was amended and extended the rules governing tar yields of cigarettes, and the warnings on tobacco products
  • The aim of this Directive was to improve the function of the internal market in tobacco products, concerning only tobacco products placed on the internal market – not media advertising
  • The legal basis for such was Article 95 of the Treaty, preventing the circumventing of internal market provisions of products exported to non-member countries  
  • The Cs, UK-based tobacco manufacturers British American Tobacco, brought proceedings before the court seeking permission to apply for the judicial review of the intent and obligation of their Member State to incorporate an EU Directive into national law, contesting the validity of the measure

Issues in Case C-491/01 ex parte British American Tobacco [2002]

  • Was the Directive valid under the legal basis of Article 95?

Held by the European Court of Justice

Yes, the Directive was held to be valid.

Findings of the Court

As the objective of the Directive relates directly to the improvement of internal markets, the Court held:

  • “the Directive genuinely has as its object the improvement of the conditions for the functioning of the internal market and that it was, therefore, possible for it to be adopted on the basis of Article 95 EC, and it is no bar that the protection of public health was a decisive factor in the choices involved in the harmonising measures which it defines.” [75]

The existence of harmonising legislation is not an obstacle to amendments:

  • “Community legislature can properly carry out its task of safeguarding the general interests recognised by the Treaty, such as public health, only if it has the freedom to amend the relevant Community legislation so as to take account of any change in perceptions or circumstances” [77]

The adaptation of Community law will consider development based upon scientific facts and findings, but will not be completely based on such:

  • “it must, in exercising the discretion it possesses in that area, also take into account other considerations, such as the increased importance given to the social and political aspects of the anti-smoking campaign.” [80]

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