Luxembourg, 10/09/2002 (Agence Europe) - Advocate General Leenert Geelhoed proposes that the Court of Justice rule that the directive of the European Parliament and the Council of 5 June 2001 concerning the manufacture, presentation and sale of tobacco products is valid since the Community legislature is empowered, on grounds of the harmonisation of the internal market, to adopt rules governing the manufacture of cigarettes even where that manufacture takes place for the purpose of exporting cigarettes from the European Union. The Court of Justice will issue its ruling in the next few months. The Court alone will decide whether to accept or reject Advocate General Geelhoed's opinion.
Two British tobacco product manufacturers, British American Tobacco and Imperial Tobacco, challenged the validity of the directive before the High Court of Justice in the UK, which asked the European Court of Justice to deliver a preliminary ruling.
EU legislators selected Treaty Articles 95 (internal market) and 133 (trade policy) to adopt the directive. The High Court asked whether the legal basis of the directive was correct and whether the directive violated certain legal principles.
The Advocate General notes that "were the Community legislature not to exercise its power to harmonise rules in the area of public health, an important instrument for the realisation of the internal market would thereby be rendered ineffective. Indeed, it is frequently the justified national measures intended to protect public health that create barriers to trade".
Leenert Geelhoed argues that Article 133 "was incorrectly included as a legal basis for the Directive", but using a double legal basis, one of which is incorrect, does not make the directive invalid, since even if the one legal basis falls, "a sufficient legal basis still subsists".
The 5 June 2001 directive set new rules for the composition and designation of cigarettes with reduced maximum permitted yields of tar and maximum yields of nicotine and carbon monoxide laid down for the first time at EU level. It applies both to cigarettes sold in the EU and to cigarettes made in the EU and then exported outside the European Union.
British American Tobacco and Imperial Tobacco jointly hold a 15.1% share of the global cigarette market, producing 800 bn cigarettes a year between them in more than 80 factories in 64 countries of the world. They basically argue that applying the directive will have a considerable impact on their business, and that Council and Parliament (in adopting the directive) are taking advantage of harmonisation within the internal market as an excuse to pass public health legislation (which Member States are responsible for).
A particularity of this case is that the two cigarette manufacturers are challenging the UK government's plans to transpose the directive into British law, arguing that it cannot be transposable into national law because it is illegal.