C-491/01 R v Secretary of State ex parte BAT and Imperial Tobacco [2002]

C-491/01 R v Secretary of State ex parte BAT and Imperial Tobacco [2002] ECR I-11453 is significant in establishing the conditions under which individuals or entities can challenge the validity of EU legislation of general application in national courts, even before the deadline for the implementation of the directive has passed.

Tobacco manufacturers in the UK challenged a directive regulating the packaging of tobacco. They initiated proceedings before the High Court for judicial review regarding the intention or obligation of the UK government to transpose the Directive into national law. Additionally, they sought a preliminary reference on the validity of the underlying directive.

The Commission and the French government contended that the request for a preliminary reference was inadmissible. They argued that the preliminary reference was made before the deadline for the implementation of the directive, during which the directive had no direct effect. Furthermore, they claimed that allowing such references would circumvent the requirements for admissibility of direct actions under Article 230 EC (now Article 263 TFEU).

The ECJ ruled that it has jurisdiction to give preliminary rulings concerning the validity and interpretation of acts of the Community institutions under Article 234 EC (now Article 267 TFEU), regardless of whether they are directly applicable. In the context of the legal remedies and procedures established by the EC Treaty, individuals who cannot directly challenge Community measures of general application under Article 263 TFEU can indirectly do so by pleading the invalidity of such acts before the Community judicature under Article 241 EC (now Article 277 TFEU), and by bringing the issue before national courts and requesting them to make a reference to the ECJ for a preliminary ruling on validity.

The Court emphasised that the opportunity for individuals to plead the invalidity of a Community act of general application before national courts is not conditional upon the act having been subject to implementing measures adopted pursuant to national law. It is sufficient if the national court is called upon to hear a genuine dispute in which the question of the validity of such an act is raised indirectly.

This case clarified the conditions under which individuals or entities can challenge the validity of EU measures of general application in national courts, even before the implementation deadline has passed. The ruling ensures that individuals have avenues to contest the validity of EU acts through both direct and indirect means, promoting the effectiveness of judicial review within the EU legal framework. The relevant principles from this case have been incorporated into Article 263 TFEU, particularly in paragraph 40.
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