C-491/01 Ex Parte British American Tobacco [2002] ECR I – 11453

• A directive on harmonised rules relating to the sale, presentation and manufacture of cigarettes were held to be a genuine promotion of the functioning free market.

• This was because the likelihood of member states adopting different rules on the subject were great, given increasing consciousness on this issue. 

ECJ (just on subsidiarity bits)

• Subsidiarity applies to Article 95:

In as much as that provision does not give it exclusive competence to regulate economic activity on the internal market

• (see Article 5 above - subsidiarity only arises where EC does NOT have exclusive competence).

• The removal of barriers:

Cannot be sufficiently achieved by the Member States individually and calls for action at Community level, as demonstrated by the multifarious development of national laws in this case.