European union law

Q1.
The European Commission is concerned about the rising popularity of electronic cigarettes within the European Union. It intends to present a proposal for a new Directive to the European Parliament and Council for consideration. The draft Directive will be based on Article 114 TFEU (the internal market provision).

Sebastian, a graduate of Liverpool Law School, is working as a stagiaire (intern) at the European Commission. He is entrusted with the task of coordinating the pre-legislative arrangements for the adoption of the new Directive on electronic cigarettes. On 1 December 2013, Sebastian sent the finalised draft Directive to the European Parliament and Council for consideration. On the same day, he received a call from Mr Bill Morris MP, chair of the UK Parliament’s European Union Scrutiny Committee asking Sebastian to forward the proposed Directive to his Committee ‘for scrutiny.’ Sebastian is unsure about the legality of this request.

(a) Advise Sebastian on the appropriate response to Mr Morris’ request.

On 5 January 2014, the Council and Parliament adopt the new Directive under Article 114 TFEU – as Directive 2014/1 EU on the marketing and advertising of electronic cigarettes. The deadline for the transposition of the Directive into national law is 28 April 2014.

The United Kingdom Government opposed the adoption of Directive 2014/1 EU, but was outvoted in the Council. It now seeks to challenge the validity of the Directive, which it believes may not have been validly adopted under Article 114 TFEU.

(b) Advise the UK Government on matters of procedure and substance relevant to its proposed challenge to Directive 2014/1 EU.

iSmokes Ltd is a UK company that produces and markets electronic cigarettes. It also wishes to contest Directive 2014/1 EU. iSmokes Ltd is concerned that the new rules on the advertising and marketing of electronic cigarettes will seriously damage its sales volumes.

(c) Advise iSmokes Ltd on its prospect of successfully challenging Directive 2014/1 EU. What chance, if any, does the company have to contest the Directive?

Answer parts (a), (b) and (c).
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