Harmonizing the Internal Market, or Public Health? – Revisiting Case C-491/01 (British American Tabacco) and Case C-380/03 (Tobacco Advertising II)
Columbia Journal European Law Online, Vol. 15, p. 41, 2009
5 Pages Posted: 4 May 2010 Last revised: 19 Aug 2014
Date Written: July 19, 2009
According to settled ECJ case law, including Case C-376/98 (Tobacco Advertising I), Article 95 EC cannot be construed as conferring upon the Community a general power to regulate the internal market. Measures that the Community legislature adopts under this Article must rather have the specific objective of improving conditions for the establishment and functioning of the internal market; that is, they must be designed to remove genuine obstacles to free movement or distortions of competition, rather than purely abstract risk.  In some respects, however, Article 95 appears to provide a pretext for the Community legislature to implement other policy goals. The most notable examples include measures aimed at harmonizing the treatment of tobacco products, where the Community legislature appears to have abused Article 95 to circumvent Article 152(4)(c), which prohibits the harmonization of Member State laws and regulations governing public health. Referring to criteria in settled ECJ case law, this article examines the aims and measures provided for under Directive 2001/37 and Directive 2003/33 - both of which were held valid by the ECJ - and argues that neither of the Directives contribute to eliminating barriers to, or distortion of, competition within the internal market.
Keywords: Case C-376/98 (Tobacco Advertising I), Case C-380/03 (Tobacco Advertising II), Directive 2001/37, Directive 2003/33
JEL Classification: K32, K33
Suggested Citation: Suggested Citation