## Facts

- The European Court of Justice (ECJ) addressed the validity of Directive 98/43/EC, which sought to harmonize Member State laws by imposing a comprehensive ban on tobacco advertising and sponsorship, with certain exceptions.
- British American Tobacco and others challenged the directive, arguing that it exceeded EU competence, particularly in the context of the subsidiarity principle.
- The directive’s objective was to protect public health by reducing tobacco consumption, especially among young people.
- The ECJ examined the transboundary nature of tobacco advertising and the potential for regulatory disparities to distort the internal market if Member States adopted differing regulations.
- The Court considered whether the directive’s objectives could be sufficiently achieved by national action or whether EU-level regulation was justified.
- The ECJ also reviewed whether the scope and provisions of the directive were proportionate to its public health aims.
- After the annulment of Directive 98/43/EC, the EU later adopted Directive 2003/33/EC, which limited the advertising ban to cases with clear cross-border effects.

## Issues

1. Whether the EU had the competence to legislate on tobacco advertising and sponsorship under the principle of subsidiarity.
2. Whether the harmonizing directive satisfied the requirements of subsidiarity and was justified by the transboundary nature of tobacco advertising.
3. Whether the scope and provisions of Directive 98/43/EC were proportionate to the stated public health objectives.
4. Whether the directive unduly infringed upon Member State autonomy and the fundamental rights of businesses.

## Decision

- The ECJ held that the objective of regulating cross-border tobacco advertising could, in principle, justify EU legislation, given the risk of regulatory disparities affecting the internal market.
- However, the Court annulled Directive 98/43/EC, finding parts of the directive—such as the ban extending to publications distributed solely in third countries—were disproportionately broad and exceeded what was necessary to achieve the stated aim.
- The ECJ concluded that while EU action on tobacco advertising could be justified, the directive’s scope did not appropriately balance public health objectives and the freedom to conduct a business.
- The ruling clarified that future EU legislation must be narrowly tailored to address cross-border issues and respect both subsidiarity and proportionality.

## Legal Principles

- The subsidiarity principle requires that the EU act only if objectives cannot be sufficiently achieved by Member States and can be better achieved at the EU level by reason of scale and effects.
- Proportionality dictates that EU measures be limited to what is necessary to achieve their objectives, avoiding excessive infringement on fundamental rights or Member State competence.
- Effective harmonization in the internal market is justified when regulatory disparities among States create obstacles to the free movement of goods and services.
- Subsequent legislation, such as Directive 2003/33/EC, should focus on demonstrable cross-border effects to satisfy these principles.

## Conclusion

The ECJ’s judgment in BAT v Secretary of State for Health annulled Directive 98/43/EC for exceeding the limits of proportionality, clarifying the conditions under which the EU may harmonize laws affecting public health and emphasizing the importance of subsidiarity and proportionality in such regulatory measures.

British American Tobacco (Investments) Ltd v Secretary of State for Health (Case C-491/01) [2002] ECR I-11453