On 5 June 2001 the European Parliament and the Council adopted Directive 2001/37/EC on the manufacture, presentation and sale of tobacco products ("the Directive"). That directive was to be transposed into the national laws of the Member States by 30 September 2002 at the latest. The rules on the composition of cigarettes marketed within the Community are to enter into force on 1 January 2004. The ban on using descriptions such as "light" or "mild" on tobacco product packaging is to enter into force on 30 September 2003.

Two British tobacco product manufacturers, British American Tobacco Limited and Imperial Tobacco Limited, have challenged before the High Court of Justice (Administrative Court) the United Kingdom's obligation to transpose the directive into domestic law. That court has referred questions concerning the validity and interpretation of the directive to the Court of Justice for a preliminary ruling.

Consideration of the validity of the Directive

First of all, the Court has considered whether it was, in the circumstances of this case, possible to use the legal basis which, in the EC Treaty, empowers the Community to adopt harmonisation measures with a view to establishing the internal market.

The tobacco product manufacturers have argued that it is not the purpose of the directive to ensure the free movement of those goods within the Community, but rather to harmonise national rules concerning the protection of public health from smoking, a sphere in which the Community does not have competence.

The Community harmonisation measures previously adopted laid down only limited requirements in respect of the manufacture and labelling of tobacco products (Directive 89/622 on labelling and Directive 90/239 on the maximum tar yield of cigarettes). The Member States were therefore free to adopt national rules in the areas not covered by those directives.

The fact that the public is increasingly conscious of the dangers to health posed by consuming tobacco products made it likely that the Member States would adopt such national rules in order more effectively to discourage consumption of tobacco products (by warnings or information on the packaging) or to reduce the harmful effects of tobacco products (new conditions for the composition of cigarettes). Some Member States had indeed already adopted provisions to that end.

In those circumstances, a new harmonising directive makes it possible to prevent the emergence of obstacles to the free movement of tobacco products within the Community, which would be created by the adoption of national rules laying down different requirements as to the manufacture, presentation and sale of tobacco products.

The ban on the manufacture in the Community of cigarettes which do not comply with the requirements of the Directive, even where they are intended for export to non-member countries, also contributes to the smooth operation of the internal market inasmuch as it makes it possible to prevent illicit reimports or the deflection of trade in those products within the Community.

In consequence, the Directive genuinely has as its object the improvement of the conditions for the functioning of the internal market and it was possible for it to be adopted on the legal basis of harmonisation of the internal market.

So far as concerns the proportionality of the harmonisation measures contained in the Directive, the Court observes first of all that the ban on manufacturing cigarettes which do not comply with the maximum levels (of tar, nicotine and carbon monoxide) fixed by the Directive is particularly appropriate for preventing at source deflections in trade affecting cigarettes manufactured in the Community for export to non-member countries. It is not possible to combat such deflections as efficiently by means of an alternative measure such as reinforcing controls on the Community's frontiers.

The Court goes on to note that the obligations under the Directive to show information on cigarette packets as to levels of harmful substances and warnings concerning the risks to health are not excessive.

Lastly, according to the Court, the ban on the use on tobacco product packaging of descriptive terms suggesting that a certain tobacco product is less harmful than others (for example, "light" or "mild"), which might mislead consumers, is appropriate for attaining a high level of health protection. The purpose of that ban is to ensure that consumers are given objective information concerning the toxicity of tobacco products. The ban is not disproportionate, having regard in particular to the fact that it is not clear that merely regulating the use of those descriptions would have been as effective in ensuring that consumers receive objective information, those descriptions being likely, by their very nature, to encourage smoking.

With regard to respect for the trade mark rights of tobacco product manufacturers, the Court observes that the latter may continue, notwithstanding the removal of descriptions from the packaging, to distinguish their products by using other distinctive signs. The restrictions on the trade mark right which may be caused by the ban on those descriptions correspond to an objective of general interest pursued by the Community and do not impair the substance of that right.

At the end of its analysis, the Court reaches the conclusion that the Directive is not invalid.

Interpretation of the scope of the Directive

Does the ban on the use on packaging of certain descriptive terms apply only to tobacco products marketed within the Community or also to products packaged in the Community for export to non-member countries?

The chief objective of the Directive is to improve the conditions for the functioning of the internal market in the tobacco products sector while ensuring a high level of health protection. In the light of that objective and having regard to the wording of the Directive's provisions, the Court considers that the Community legislature did not intend to extend the ban on marketing within the Community tobacco products the packaging of which carries prohibited descriptive terms to tobacco products packaged within the Community for export to non-member countries. The prohibition of the use on tobacco product packaging of descriptive terms such as "light" or "mild" therefore applies only to products marketed within the Community.

N.B. This is the second time that the Court has been called upon to give a ruling on a Community directive which is intended to discourage smoking. On 5 October 2000 the Court annulled the tobacco advertising directive in Case C-376/86 Germany v Parliament and Council [2000] ECR I-8419. See Press Release 72/00, www.curia.eu.int .

Unofficial document for media use only; not binding on the Court of Justice. Available in all languages. For the full text of the judgment, please consult our Internet page www.curia.eu.int  at approximately 3pm today. For further information please contact Isabelle Guibal. Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731 Pictures of the hearing are available on "Europe by Satellite" European Commission, Press and Information Service, L-2920 Luxembourg Tel: (00 352) 4301 35177; Fax: (00 352) 4301 35249, or B-1049 Brussels, Tel: (00 32) 2 2964106, Fax: (00 32) 2 2965956, or (00 32) 2 301280