Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT

5 October 2000 (1)

(Directive 98/43/EC - Advertising and sponsorship of tobacco products - Validity)

In Case C-74/99,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the High Court of Justice of England and Wales, Queen's Bench Division (Crown Office), for a preliminary ruling in the proceedings pending before that court between

The Queen

and

Secretary of State for Health and Others,

ex parte: Imperial Tobacco Ltd and Others,

on the validity of Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ 1998 L 213, p. 9),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.C. Moitinho de Almeida (Rapporteur), D.A.O. Edward, L. Sevón and R. Schintgen (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann, A. La Pergola, J.-P. Puissochet, P. Jann, H. Ragnemalm, M. Wathelet and F. Macken, Judges,

Advocate General: N. Fennelly,

Registrar: H. von Holstein, Deputy Registrar, and L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Imperial Tobacco Ltd and Others, by D. Wyatt and D. Anderson QC, and J. Stratford, Barrister, instructed by Lovell White Durrant, Solicitors,

- the United Kingdom Government, by M. Ewing, of the Treasury Solicitor's Department, acting as Agent, and R. Cranston QC, MP, Her Majesty's Solicitor General for England and Wales, and N. Paines QC,

- the German Government, by W.-D. Plessing, Ministerialrat in the Federal Ministry of the Economy, and C.-D. Quassowski, Regierungsdirektor at the same Ministry, acting as Agents,

- the French Government, by K. Rispal-Bellanger, Head of Subdirectorate in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and R. Loosli-Surrans, Chargé de Mission in the same directorate, acting as Agents,

- the Italian Government, by U. Leanza, Head of the Legal Department of the Ministry of Foreign Affairs, acting as Agent, and O. Fiumara, Avvocato dello Stato,

- the Finnish Government, by E. Bygglin, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

- the European Parliament, by C. Pennera, Head of Division in the Legal Service, and R. Bray and M. Moore, of the same service, acting as Agents,

- the Council of the European Union, by R. Gosalbo Bono, Director in the Legal Service, A. Feeney and S. Marquardt, of the same service, acting as Agents,

- the Commission of the European Communities, by I. Martínez del Peral, of its Legal Service, and M. Shotter, a national civil servant on secondment to that service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Imperial Tobacco Ltd and Others, represented by D. Wyatt and D. Anderson; of the United Kingdom Government, represented by G. Amodeo, of the Treasury Solicitor's Department, acting as Agent, and R. Cranston and N. Paines; of the German Government, represented by C.-D. Quassowski, assisted by J. Sedemund, Rechtsanwalt, Berlin; of the French Government, represented by R. Loosli-Surrans; of the Italian Government, represented by O. Fiumara; of the Finnish Government, represented by T. Pynnä, Valtionasiamies, acting as Agent; of the Parliament, represented by C. Pennera and M. Moore; of the Council, represented by R. Gosalbo Bono, A. Feeney and S. Marquardt; and of the Commission, represented by I. Martínez del Peral and M. Shotter, at the hearing on 12 April 2000,

after hearing the Opinion of the Advocate General at the sitting on 15 June 2000,

gives the following

Judgment

1. By decision of 2 February 1999, received at the Court on 2 March 1999, the High Court of Justice of England and Wales, Queen's Bench Division (Crown Office,) referred to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) a question on the validity of Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ 1998 L 213, p. 9, hereinafter 'the Directive).

2. That question was raised in connection with proceedings in which, on 21 September 1998, Imperial Tobacco Limited, Gallaher Limited, Rothmans (UK) Limited and British American Tobacco Investments Limited or their subsidiaries (hereinafter 'Imperial Tobacco and Others) sought leave to apply for judicial review of, inter alia, the intention and/or obligation on the part of the United Kingdom to give effect to the requirements of the Directive. They also requested that a preliminary ruling be sought from the Court of Justice under Article 177 of the Treaty.

3. In the main proceedings Imperial Tobacco and Others allege that the Directive is invalid on six grounds: (i) inadequate legal basis, (ii) infringement of the fundamental right of freedom of expression, (iii) breach of the principle of proportionality, (iv) breach of the principle of subsidiarity, (v) infringement of the obligation to state reasons and (vi) infringement of Article 222 of the EC Treaty (now Article 295 EC) and/or infringement of the fundamental right to property.

4. The national court has taken the view that the grounds of invalidity relied on by Imperial Tobacco and Others are arguable and has decided to seek a preliminary ruling from the Court of Justice on the validity of the Directive, in the following terms:

   'Is Council Directive 98/43 invalid, in whole or in part, by reason of:

   (a) the inadequacy of Articles 57(2), 66 and 100a as a legal basis;

   (b) infringement of the fundamental right to freedom of expression;

   (c) infringement of the principle of proportionality;

   (d) infringement of the principle of subsidiarity;

   (e) infringement of the duty to give reasons;

   (f) infringement of Article 222 EC and/or the fundamental right to property?

5. By judgment delivered today in Case C-376/98 Germany v Parliament and Council [2000] ECR I-0000, the Directive was annulled in its entirety. There is therefore no need to answer the question submitted.

   Costs

6. The costs incurred by the United Kingdom, German, French, Italian and Finnish Governments and by the Parliament, the Council and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the High Court of Justice of England and Wales, Queen's Bench Division (Crown Office), by decision of 2 February 1999, hereby rules:

Since Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products has been annulled by the judgment delivered today in Case C-376/98 Germany v Parliament and Council, there is no need to give a ruling on the question submitted.

Rodríguez Iglesias Moitinho de Almeida Edward Sevón Schintgen Kapteyn Gulmann La Pergola Puissochet Jann Ragnemalm Wathelet Macken

Delivered in open court in Luxembourg on 5 October 2000.

R. Grass G.C. Rodríguez Iglesias

Registrar President

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1: Language of the case: English.