Swedish Match 2018: Can the Court Actually Advise or Make the Commission Consider the Evidence?

Abstract

This case review discusses the 2018 Swedish Match judgment of the European Court of Justice, arguing that the ECJ makes an implicit statement on the horizontal allocation of competences between itself and the European legislator. In order to contest the prohibition on snus in the Tobacco Products Directive of 2014, Swedish Match relies on new scientific evidence that came into light after the adoption of the Directive. The ECJ raises three main points in order to deny the request for annulment, but ultimately fails to engage with Swedish Match’s main argument. This can be explained by considering the Court’s reluctance to engage with scientific evidence and the discretion it awards to the European legislator in making political choices amidst scientific uncertainty. Nevertheless, this judgment, in comparison to others where the Court uses the precautionary principle to explain the legislator’s choice, is not dealing with scientific evidence that existed during the creation of the legislation. Therefore, the question here should be not whether the legislator was right in adopting the Directive when it did, but rather whether it is right in maintaining it now when new evidence that may reduce the scientific uncertainty has come to light. The Court, however, cannot answer this question and it does not. Thus, this judgment showcases a gap in the interplay between the EU institutions: legislation adopted on the basis of precaution cannot be adequately reviewed by the Court on the basis of new scientific evidence that could potentially reduce the scientific uncertainty and trigger an annulment or amendment.