«(Directive 2001/37/EC – Manufacture, presentation and sale of tobacco products – Validity – Legal basis – Articles 95 EC and 133 EC – Interpretation – Applicability to tobacco products packaged in the Community and intended for export to non-member countries)»

1.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Legal basis – Article 95 EC – Improvement of the conditions for the functioning of the internal market – Protection of public health a decisive factor in the choices involved in the harmonising measures – Not relevant (Art. 95 EC; Directive 2001/37 of the European Parliament and of the Council)

2.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Legal basis – Article 95 EC – Improvement of the conditions for the functioning of the internal market – Prohibition of manufacture intended to prevent the circumvention of the marketing rules in the internal market – Included (Art. 95 EC; Directive 2001/37 of the European Parliament and of the Council, Art. 3(1))

3.. Acts of the institutions – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Choice of legal basis – Criteria – Community measure pursuing a twofold basis or having a twofold component – Reference to the main or predominant purpose or component – Incorrect reference to Article 133 EC as a second legal basis – Not relevant to the validity of the directive (Arts 95 EC and 133 EC; Directive 2001/37 of the European Parliament and of the Council)

4.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Harmonising measures – No breach of the principle of proportionality (Directive 2001/37 of the European Parliament and of the Council, Arts 3, 5 and 7)

5.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Respect of the right to property – Trade mark – Proportionate restrictions not impairing the very substance of that right (Directive 2001/37 of the European Parliament and of the Council, Arts 5 and 7)

6.. Community law – Principles – Principle of subsidiarity – Application to acts adopted for the purpose of establishing the internal market – Review of observance of the principle of subsidiarity – Criteria (Art. 95 EC)

7.. Approximation of laws – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Article 7 – Prohibition of the use of descriptors likely to mislead consumers – Applicable only to tobacco products marketed within the Community (Art. 95 EC; Directive 2001/37 of the European Parliament and of the Council, Arts 3, 5 and 7)

JUDGMENT OF THE COURT 10 December 2002 (1)

((Directive 2001/37/EC – Manufacture, presentation and sale of tobacco products – Validity – Legal basis – Articles 95 EC and 133 EC – Interpretation – Applicability to tobacco products manufactured in the Community and intended for export to non-member countries))

In Case C-491/01,

REFERENCE to the Court under Article 234 EC by the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court), for a preliminary ruling in the proceedings pending before that court between

and

on the validity and interpretation of Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products (OJ 2001 L 194, p. 26),

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), D.A.O. Edward, A. La Pergola (Rapporteur), P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd, represented by D. Wyatt and D. Anderson, and by J. Stratford; of Japan Tobacco Inc. and JT International SA, represented by O.W. Brouwer and N.P. Lomas; of the United Kingdom Government, represented by J.E. Collins, acting as Agent, and N. Paine and T. Ward; of the Belgian Government, represented by G. Vandersanden; of the German Government, represented by M. Lumma, acting as Agent, assisted by J. Sedemund; of the Greek Government, represented by V. Kontolaimos and S. Charitakis; of the French Government, represented by R. Loosli-Surrans; of the Irish Government, represented by J. Buttimore BL; of the Italian Government, represented by O. Fiumara; of the Luxembourg Government, represented by N. Mackel, acting as Agent, assisted by P. Kinsch; of the Netherlands Government, represented by J. van Bakel, acting as Agent; of the Finnish Government, represented by E. Bygglin; of the Parliament, represented by C. Pennera and M. Moore; of the Council, represented by E. Karlsson and J.-P. Hix, and of the Commission, represented by I. Martinez del Peral and K. Fitch, at the hearing on 2 July 2002,

after hearing the Opinion of the Advocate General at the sitting on 10 September 2002,

gives the following

Directive 89/622/EEC

Directive 90/239/EEC

The Directive

Observations submitted to the Court

Findings of the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

The answer to be given to the first question, taken as a whole

Observations submitted to the Court

Findings of the Court

On those grounds,

THE COURT,

in answer to the questions referred to it by the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) by order of 6 December 2001, hereby rules:

Rodríguez Iglesias

Puissochet

Wathelet

Schintgen

Timmermans

Edward

La Pergola

Jann

Skouris

Macken

Colneric

von Bahr

Cunha Rodrigues

Delivered in open court in Luxembourg on 10 December 2002.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President