Case C-491/01





The Queen

v

Secretary of State for Health,

ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd







(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court))

«(Directive 2001/37/EC – Manufacture, presentation and sale of tobacco products – Validity – Legal basis – Articles 95 EC and 133 EC – Interpretation – Applicability to tobacco products packaged in the Community and intended for export to non-member countries)»

Opinion of Advocate General Geelhoed delivered on 10 September 2002 I - 0000

Judgment of the Court, 10 December 2002 I - 0000

Summary of the Judgment

1.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Legal basis – Article 95 EC – Improvement of the conditions for the functioning of the internal market – Protection of public health a decisive factor in the choices involved in the harmonising measures – Not relevant

(Art. 95 EC; Directive 2001/37 of the European Parliament and of the Council)

2.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Legal basis – Article 95 EC – Improvement of the conditions for the functioning of the internal market – Prohibition of manufacture intended to prevent the circumvention of the marketing rules in the internal market – Included

(Art. 95 EC; Directive 2001/37 of the European Parliament and of the Council, Art. 3(1))

3.. Acts of the institutions – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Choice of legal basis – Criteria – Community measure pursuing a twofold basis or having a twofold component – Reference to the main or predominant purpose or component – Incorrect reference to Article 133 EC as a second legal basis – Not relevant to the validity of the directive

(Arts 95 EC and 133 EC; Directive 2001/37 of the European Parliament and of the Council)

4.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Harmonising measures – No breach of the principle of proportionality

(Directive 2001/37 of the European Parliament and of the Council, Arts 3, 5 and 7)

5.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Respect of the right to property – Trade mark – Proportionate restrictions not impairing the very substance of that right

(Directive 2001/37 of the European Parliament and of the Council, Arts 5 and 7)

6.. Community law – Principles – Principle of subsidiarity – Application to acts adopted for the purpose of establishing the internal market – Review of observance of the principle of subsidiarity – Criteria

(Art. 95 EC)

7.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Article 7 – Prohibition of the use of descriptors likely to mislead consumers – Applicable only to tobacco products marketed within the Community

(Art. 95 EC; Directive 2001/37 of the European Parliament and of the Council, Arts 3, 5 and 7)

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