Saving us from ourselves? A fundamental rights approach on standardised packaging in the EU

Abstract: The Court of Justice of the European Union delivered three decisions on the 4th of May on the validity of the new Tobacco Products Directive; one on the standardisation of packaging that is obligatory for member states to adopt. The present thesis examines the measure to be adopted only by four member states as part of the implementation of the Directive. The United Kingdom, Ireland, France and Hungary are adopting a stricter “standardised packaging” measure as well (also known as plain packaging), banning all branding from the packages and in effect hindering tobacco companies to use their registered trade marks. As the Court has only answered whether the Directive is valid, the present thesis seeks to answer the question whether this “standardised packaging” for tobacco products is in conformity with the fundamental rights laid down in the Charter of Fundamental Rights of the European Union. After identifying the two relevant fundamental rights, namely the right to property and the freedom of expression and information; with a strong focus on the content and the function of the trade mark right, this thesis follows the Court’s case law in assessing fundamental rights related cases and concludes, that even though in its recent decision the Court is leaning towards a paternalistic approach to tobacco addiction, standardised packaging should amount to a violation of those two identified fundamental rights.