## Facts

- The case involved Directive 98/43/EC, designed to harmonize national laws on tobacco advertising and sponsorship across EU member states.
- British American Tobacco (BAT) and Imperial Tobacco challenged the validity of Directive 98/43/EC before the UK High Court, claiming it was beyond the European Community's legal competence.
- The UK High Court referred the matter of the directive's validity to the European Court of Justice (ECJ).
- The claimants’ standing to directly challenge the directive depended on whether they were of direct concern.
- Directive 98/43/EC permitted member states a certain degree of discretion in its implementation.

## Issues

1. Whether Directive 98/43/EC was of direct concern to BAT and Imperial Tobacco, thereby allowing them standing to challenge it before the ECJ.
2. Whether member state discretion in implementing the directive precluded a finding of direct concern.
3. Whether BAT and Imperial Tobacco could alternatively demonstrate individual concern sufficient for standing.

## Decision

- The ECJ held that a measure is of direct concern only if it directly affects the individual's legal situation and does not require further implementing acts by member states or institutions.
- The Court found that member states retained discretion in transposing Directive 98/43/EC into national law.
- This discretion broke the direct relationship necessary for direct concern.
- The ECJ determined that the claimants also did not meet the criteria for individual concern.
- Accordingly, the claimants lacked standing to directly challenge the directive.

## Legal Principles

- Direct concern requires a clear and precise link between an EU act and an individual's legal situation, without intervening implementing acts by member states.
- The existence of member state discretion in executing an EU measure severs the necessary direct link for establishing direct concern.
- The legal concepts of direct concern and individual concern are distinct, each with separate requirements for standing.
- Demonstrating direct concern is reserved for exceptional cases where a specific legal relationship exists between the EU act and the individual.

## Conclusion

The ECJ reaffirmed that member state discretion in implementing EU directives precludes individuals from establishing direct concern, thereby limiting their capacity to bring direct challenges before the ECJ and emphasizing the primary role of national courts in protecting individual rights under EU law.

R v Secretary of State, ex parte BAT and Imperial Tobacco (Case C-491/01) [2002] ECR I-11453