Plain Packaging on Its Way to Europe: Competence Issues and Compatibility with European Fundamental Rights

Abstract:     
Peter Henning and Leonid Shmatenko discuss in this article the legal obstacles that are likely to be faced by proposed reforms to the European Union’s (‘EU’) Tobacco Directive in EU law. The structure of the article is as follows: (1) Part 1 examines whether the EU Commission and Parliament have the legal competence to introduce plain packaging laws; (2) In Part 2, the authors discuss the likely compatibility of plain packaging laws with primary EU law, particularly the Charter of Fundamental Rights of the European Union and Article 34 of the Treaty on the Functioning of the European Union. The authors conclude that the plain packaging measures would require a balancing between the rights of manufacturers to display their trademarks on the one hand and the perceived public health benefits of plain packaging on the other hand. In order to pass the EU law hurdles, the plain packaging measures are likely to need to satisfy a three-step test of adequacy, requiring the suitability, necessity and proportionality of each measure.

Number of Pages in PDF File: 17

Keywords: WHO, TFEU, FCTC, Fundamental Rights, European Law, Constitutional Law

Accepted Paper Series