The role of the ECJ in EU legislation

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The role of the ECJ in EU legislation

• Fiona Godfrey
• Consultant in EU policy
• European Respiratory Society
• 88 rue des Sources
• Luxembourg
• Email fgodfrey_at_pt.lu

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How the European Court of Justice influences EU
health policy and law

• Two Courts
• European Court of Justice (ECJ)
• Court of First Instance (CFI)
• Both in Luxembourg
• 15 Judges, 8 Advocates-General

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The role of the Courts

• To provide a judicial review of most EU
  legislation and acts
• Cases can be sent from the national courts of the
  member states to the ECJ or
• Introduced directly by interested parties into
  the CFI

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The Tobacco Cases

• 1998-2000 Tobacco I - appeal against 1998
  tobacco advertising directive (Case C-376/98)
• 2000-2002 Tobacco II appeal against 2001
  tobacco product regulation (Case C-491/01)

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Background

• 1989 EU Commission proposes tobacco advertising
  directive
• 1989-1997 Discussion in European Parliament and
  Member States
• 1998 Directive 1998/43/EC adopted, bans almost
  all tobacco advertising
• Directive adopted as an internal market measure,
  not a health measure
• October 1998 legal challenge to Directive

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Background cont.

• November 1999 Commission proposes amendments to 3
  existing tobacco product and labelling directives
• October 2000 ECJ gives judgment in Tobacco I case
• July 2001 Products Directive 2001/EC/37 adopted
• October 2001 legal challenge to new directive
  (Tobacco II)
• December 2002 ECJ gives judgment

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Tobacco I

• Several cases in one
• ECJ
• German government appeal
• Appeals from British American Tobacco (BAT) and
  Imperial Tobacco in the UK
• CFI
• Salamander Shoes, Davidoff, several advertising
  firms
• No formal NGO involvement but several member
  states intervened in support of directive

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Arguments

• Germany tobacco companies argued 1998 Tobacco
  Advertising Directive was illegal - why?
• No legal base in EU treaty for such a public
  health measure
• Disproportionate
• Did not respect subsidiarity
• In breach of fundamental right to freedom of
  speech
• EU failed to give reasons

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Judgment

• ECJ ruled the tobacco advertising directive was
  illegal
• It did not remove obstacles to trade in the
  internal market
• It did not eliminate distortions of competition
  but
• The EU could adopt legislation which protects
  public health
• The EU could ban certain types of tobacco
  advertising

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Effect of judgment

• EU tobacco advertising directive thrown out
• Commission brought forward new directive limited
  to direct advertising
• Commission generally became more conservative in
  tobacco control policy
• Pro tobacco Legal Affairs Committee took control
  of all tobacco legislation in European Parliament

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Tobacco II

• BAT, Imperial Tobacco, Japan Tobacco and German
  government challenged tobacco advertising
  directive, 2001/37/EC
• Same grounds as Tobacco I

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Judgment

• ECJ ruled tobacco products directive was legal
  and that the EU could
• Update previous laws in this field
• Take action to protect public health
• Adopt measures to protect public from tobacco
  smuggling
• Ban the words light and mild
• Impose large warning labels
• Order the disclosure of ingredients in tobacco
  products

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Lessons to be learned

• The tobacco industry will challenge every piece
  of EU legislation in the courts
• NGOs need to find better ways of influencing the
  legal process
• EU institutions and member states dont always
  get it
• This leads to a conservative approach to
  legislation and policy
• We need a better legal base for health
• Be positive - take one case at a time

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More information

• ECJ web site
• http//curia.eu.int/en/index.htm
• European Parliament public hearing on 2nd
  advertising directive
• http//www.europarl.eu.int/hearings/20020415/juri/
  default_en.htm
• EU laws
• http//www.europa.eu.int/eur-lex/en/search/search_
  lif.html