Notice for the OJ

 

Reference for a preliminary ruling by the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) by order of that court dated 17 April 2003, in the case of The Queen on the application of 1) Swedish Match AB 2) Swedish Match UK Ltd against Secretary of State for

Health

    (Case C-210/03)

Reference has been made to the Court of Justice of the European Communities by an order of the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court), dated 17 April 2003, which was received at the Court Registry on 15 May 2003, for a preliminary ruling in the case of The Queen on the application of 1) Swedish Match AB 2) Swedish Match UK Ltd against Secretary of State for Health on the following questions:

(1)Are Articles 28-30 EC, applied compatibly with the general principles of proportionality, non-discrimination and fundamental rights (in particular the right to property), to be interpreted as precluding national legislation which prohibits any person from supplying, offering or agreeing to supply, exposing for supply or possessing for supply any product made wholly or partly of tobacco which is either in powder or particulate form or any combination of those forms or is presented in a form resembling a food product and is intended for oral use other than smoking or chewing?

(2)Is Article 8 of Directive 2001/37/EC¹ invalid in whole or in part by reason of:

a.    infringement of the principle of non-discrimination;

b.    Infringement of Article 23 and/or 29 EC;

c.    infringement of the principle of proportionality;

d.    the inadequacy of Article 95 and/or Article 133 as a legal basis;

e.    infringement of Article 95(3);

f.    misuse of powers;

g.    infringement of Article 253 EC and/or the duty to give reasons;

h.    infringement of the fundamental right to property?

(3)In circumstances where:

a.a national measure implementing Article 8a of Directive 89/622/EEC² was adopted in 1992;

b.the said national measure was adopted pursuant to powers in domestic law which do not depend on the existence of an obligation to implement the Directive;

c.Directive 89/622/EEC (as subsequently amended by the Act of Accession of Austria, Finland and Sweden) is repealed and replaced by Directive 2001/37/EC, Article 8 of which re-enacts Article 8a of Directive 89/622/EEC; and

d.Article 8 of Directive 2001/37/EC is invalid by reason of the principles referred to in questions 2(a), 2(c) or 2(h)

are those principles to be interpreted as also prohibiting the national measure in question?

____________

¹ - 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 - Commission statementOJ L 194, 18.07.2001, p. 26 - 35

² - Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco productsOJ L 359, 08.12.1989, p. 1 - 4