Press and Information Division


25 June 2002

British American Tobacco Investments and Imperial Tobacco

on 2 July 2002 at 9.30 am

Hearing in Case C-491/01

This request for a preliminary ruling has been made by the High Court of Justice and concerns the validity of the new 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 (labelling) and sale of tobacco products (OJ 2001 L 194, p. 26).


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.


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.

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).

Unofficial document for media use which is not binding on the Court of Justice.

If you wish to be present, please send the attached form by Monday 1 July 2002, 12.00, by fax to the Press and Information Division of the Court of Justice - Fax number: 00352-4303-2731.

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.




Accreditation to be sent by fax to: 00 352 4303 2731 (deadline 1 July, 12 noon)
Contact: Reinier Van Winden
Tel: 00 352 4303 3355

re: oral hearing in Case C-491/01 British American Tobacco Investments Ltd and Imperial Tobacco Ltd



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