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 art 95, “inasmuch as that provision does not give it exclusive competence to regulate economic activity on the internal market” (see art. 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”.