INFORMATION FOR THE PRESS No 57/02
25 June 2002
British American Tobacco Investments and Imperial Tobacco
on 2 July 2002 at 9.30 am
Hearing in Case C-491/01
As an aide-memoire, we would remind you that in two judgments the Court of
Justice annulled the earlier 1998 directive (98/43/EC) which governed direct
and indirect advertising of tobacco products and sponsorship of events promoting
tobacco products (see Cases C-376/98: an action for annulment brought
by the Federal Republic of Germany and C-74/99: a reference for a preliminary
ruling from the High Court of Justice in proceedings brought by a number of
tobacco manufacturers (Imperial Tobacco and Others)). The Court considered that
the Community legislature was not competent to adopt that directive on the basis
of the provisions concerning the establishment of the internal market, the right
of establishment and the freedom to provide services (see also our Press Release
No 72/2000).
On 5 June 2001 the Council and the Parliament adopted a directive concerning
the advertising of tobacco products in order to:
- recast Council Directive 89/622 (on the approximation
of the laws, regulations and administrative provisions [of the Member States]
concerning the labelling of tobacco products and the prohibition of the marketing
of certain types of tobacco for oral use;
- and the 1990 directive (90/239) fixing the maximum
tar yield of cigarettes
- by adapting and adding to certain of their provisions.
Facts
British American Tobacco Investments Ltd and Imperial Tobacco Ltd and their
subsidiaries manufacture tobacco products in the United Kingdom. On 3 September
2001 they brought proceedings before the High Court, seeking permission to apply
for judicial review of the intention and/or obligation of the United Kingdom
Government to transpose the Directive into national law, putting forward seven
pleas in law to establish the invalidity of the Directive. The defendant in
the case is the Secretary of State for Health.
The High Court gave that permission and, following a hearing, decided by order
of 6 December 2001 to stay proceedings and to refer the following questions
to the Court of Justice for a preliminary ruling:
"1. Is Directive 2001/37/EC invalid, in whole
or in part?
2. If it is valid, does Article 7 of the
Directive, entitled 'Product descriptions', concerning the prohibition
on using on the packaging of tobacco products as from 30 September 2003
texts, names, trade marks and figurative or other signs suggesting that a particular
tobacco product is less harmful than others, apply only to tobacco products
marketed within the European Community, or does it apply also to tobacco products
packaged within the European Community for export to third countries?"
By order of 26 February 2002, the High Court granted one of the world's major
manufacturers of cigarettes, Japan Tobacco Inc., and one of its subsidiaries,
JT International SA, permission to intervene in the main proceedings, in order
to enable them to submit written observations to the Court of Justice. Before
the High Court, Japan Tobacco stated that its complaints concerned Article
7 only and, in particular, the pleas in law already raised by the British
American Tobacco Investments Ltd, Imperial Tobacco Ltd and their subsidiaries.
N.B.: Within the European Community, JT International SA manufactures cigarettes
at its factory in Germany and carries on its business activities of cigarette
distribution in the 15 Member States. Japan Tobacco Inc. is the trademark
owner and JT International is the exclusive licensee of the 'MILD SEVEN' commercial
trademark, the second largest brand of cigarettes in the world. Japan Tobacco
submits that Article 7 of the Directive, in so far as it is to be interpreted
as applying to established trademarks, will preclude Japan Tobacco from having
the benefit of, or using, within the Community, the intellectual property in
the MILD SEVEN trademark, which will cause severe damage to the value of the
brand worldwide.
Ten Member States have put forward their views on the matter, including Germany,
which had brought an action against the 2001 Directive which was dismissed last
month.
N.B.: On 17 May 2001 the Court made an order dismissing as manifestly
inadmissible an action brought by Germany against the European Parliament and
the Council of the European Union because it had (by one day) missed the final
deadline for initiating proceedings (Case C-406/01, see Press Release No 47/02).
By way of further information we would draw to your attention other
cases pending or decided in the tobacco sector
(1) Cases concerning the same subjectmatter
as the observations submitted in the case cited above
Case T-223/01: Japan Tobacco Inc. and JT International
SA v Council of the European Union and the European Parliament. Application
lodged on 20 September 2001.
(2) Cases concerning the Commission's decisions
of 7 September 2000 implicitly rejecting British American Tobacco's application
for access to certain scientific documents relating to the preparatory work
on a proposal for the 2001 directive (COM/99/594 final)
Case T-4/00: British American Tobacco International
(Holding) v Commission. Removed from the register by order of 20 March 2000.
Case T-41/00: British American Tobacco International
(Holding) BV v Commission. Dismissed as inadmissible by order of 30 April 2001.
Case T-111/00: British American Tobacco (Investments)
v Commission. Judgment given on 10 October 2001.
Case T-311/00: British American Tobacco (Investments)
v Council of the European Union and the European Parliament. Application lodged
on 28 September 2000. Judgment given on 25 June 2002.
(3) Cases which, according to the Commission,
concern cigarette smuggling within the Union
Case T-377/00: Philip Morris International Inc v
Commission. Application lodged on 19 December 2000. Hearing 26 June 2002.
Case T-379/00: Reynolds Tobacco and Others v
Commission. Application lodged on 20 December 2000. Hearing 26 June 2002-
Case T-380/00: Japan Tobacco Inc. v Commission.
Application lodged on 20 December 2000. Hearing 26 June 2002.
Case T-260/01: Reynolds and Others v Commission.
Application lodged on 15 October 2001. Hearing 26 June 2002.
Case T-272/01: Philip Morris International Inc
v Commission. Application lodged on 15 October 2001. Hearing 26 June 2002.
Before the Court of First Instance, several cigarette manufacturers suspected
by the Commission of smuggling within the Union have challenged a Commission
press release in which that institution announced its intention of bringing
actions for damages before courts in the United States in order to obtain compensation
for financial loss suffered by the Union and also a court order prohibiting
the smuggling.
The hearing in these proceedings will take place before a full plenum
of the Court of Justice at 9.30 am, Tuesday 2 July 2002.
A report for the hearing will be available in the language of the case (English).
| A press room with office equipment will be available. Please note the following: * the use of mobile phones or other loud electronic devices is not permitted
during the hearing; * the public is requested to remain quiet and seated throughout the
hearing or ceremony; * photography and filming are authorised only at the very beginning
of the hearing (seating of the President and parties, delivery of judgments
or opinions); * the use of flash or supplementary lighting systems is not permitted; * if numerous photographers and cameramen are interested, a "pool"
may be arranged by the Press and Information Division; * photographers and cameramen may not move around the hearing room in
order to take photographs or to film; * press are asked to use the Thomas More entrance, Boulevard Konrad
Adenauer.
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