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Case C-491/01 (BAT and Imperial Tobacco) [2002]

Case C-491/01 R v Secretary of State for Health, ex p British American Tobacco and Imperial Tobacco [2002]


  • Directive 2001/37/EC sought to harmonise laws on the manufacture, sale and presentation of tobacco products
  • The directive was adopted on two legal basis, [Art 114 TFEU] on internal market measures and a common commercial policy basis


  • Was the directive valid?


  • Yes, directive valid and must be transposed


  • A measure will be validly based on [Art 114 TFEU] if it is genuinely intended to improve conditions for the establishment of the internal market
  • There were differences in packaging and ingredient requirements between Member States, justifying the user of [Art 114 TFEU]


  • The effects based analysis used in this case is inexplicably different to the object based analysis used in Tobacco Advertising I [2000]
  • Recourse to Art 114 TFEU was made easier by relaxing a requirement of a positive effect on trade to a mere hypothetical requirement
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