C-210/03 Swedish Match v Secretary of State for Health [2004]

C-210/03 R (on the application of Swedish Match AB and Swedish Match UK Ltd) v Secretary of State for Health [2004] ECR I-11893 involved the challenge to the ban on snus (tobacco for oral use) within the European Union. Swedish Match, having previously failed in challenging the ban, sought to revisit the prohibition in light of scientific developments. One key aspect of the challenge was whether then Article 95 EC (now Article 114 TFEU) constituted the appropriate legal basis for the directive.

The outcome of the case resulted in the rejection of annulment, with the court affirming that Article 95 was indeed the appropriate legal basis for the directive. The judgment sheds light on the scope of Article 95 and its application in harmonising laws to prevent future disparities in national rules.

The judgment clarified that, following the Tobacco Directive case, the mere identification of disparities between national rules is insufficient to justify recourse to Article 95 unless these disparities directly impact the functioning of the internal market. Article 95 can be invoked if the objective is to prevent future trade obstacles arising from the development of divergent national laws, provided that the emergence of such obstacles is likely, and the measure is designed to avert them. Importantly, even if public health protection is a decisive factor, it does not preclude the use of Article 95.

In the specific context of this case, the court considered the existing discrepancies in national laws concerning snus at the time when the directive was introduced. The judgment acknowledged the public's increasing awareness of the health risks associated with tobacco consumption, indicating that obstacles to the free movement of snus due to new rules were likely. As such, the conditions for recourse to Article 95 were fulfilled, allowing for measures that could include requiring member states to authorise the product, subjecting authorisations to conditions, or even prohibiting the product, depending on the circumstances.

In summary, this case underscores that Article 95 (now Article 114) can be legitimately used to harmonise laws and prevent future disparities in national rules, provided certain conditions are met, and the measure is designed to address likely obstacles to the functioning of the internal market. The judgment recognises the interplay between public health considerations and the need to ensure the smooth operation of the internal market.
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