R v Secretary of State ex parte BAT and Imperial Tobacco [2002] ECR I-11453

• A directive had been challenged in the UK before it had been implemented by Plaintiff seeking JR, in national courts, of the decision to implement, on the basis that the directive was invalid.

• The key question here is whether a reference on the validity of an unimplemented directive whose deadline for implementation had passed.

• ECJ held that the reference was valid.

  • Dr. Ringe: Could this case be the kind of national measure that the court in UPA wished NCs to grant, so as to afford effective protection where neither 234 nor 230 could be used?

ECJ

• Supports the approach of UPA and states:

In the complete system of legal remedies and procedures established by the EC Treaty with a view to ensuring judicial review of the legality of acts of the institutions, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of that article, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community judicature under Article 241 EC or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid, to make a reference to the Court of Justice for a preliminary ruling on validity

• (cites UPA as standing for this).

The opportunity open to individuals to plead the invalidity of a Community act of general application before national courts is not conditional upon that act's actually having been the subject of implementing measures adopted pursuant to national law. In that respect, it is sufficient if the national court is called upon to hear a genuine dispute in which the question of the validity of such an act is raised indirectly.

• NB The standing of natural and legal persons to bring annulment actions against regulatory acts which do not provide for implementing measures would have been enhanced by the Treaty establishing a Constitution and will be enhanced by the Lisbon Treaty, should it enter into force.

• Is this a desirable change? Could the Court Move in this direction even without Treaty revision? Should it?