Case C-210/03 Swedish Match [2004] ECR I-11893

Key point

  • The use of Article 114 TFEU to harmonise laws to as to prevent future disparities in nation rules is legitimate if the emergence of disparities is likely


  • Swedish Match challenged the ban of snus (tobacco for oral use) in the EU and failed before
  • Now it sought to challenge the prohibition again in light of scientific developments
  • One ground of challenge was whether then Article 95 EC (now Article 114 TFEU) is the appropriate legal basis for the directive


  • Annulment was rejected; Article 95 is the appropriate legal basis


Scope of Article 95

  • Under Tobacco Directive case, a mere finding of disparities between national rules is not sufficient to justify recourse unless there are disparities that have a direct effect on the functioning of the internal market
  • Recourse to Article 95 is possible if the aim is to prevent future obstacles to trade from the development of disparate national laws, the emergence of such obstacles is likely and the measure must be designed to prevent them
  • And where the conditions for recourse to  Article 95 is fulfilled, the fact that public health protection is a decisive factor does not prevent such recourse
  • Depending on the circumstances, the measures may consist in requiring the member state to authorise the product, subjecting the authorisation to conditions, or prohibiting the product

Present case

  • At the time when the directive was introduced, there was already discrepancy in national laws on snus
  • Having regard also to the public’s growing awareness of the health dangers of the consumption of the tobacco products, it was likely that obstacles to the free movement due to new rules