The European Court of Justice annulled the Tobacco Advertising Directive because it could not be justified as an internal market measure. This article contrasts that decision with a couple of US Supreme Court cases that also struck down laws that had been enacted under their Commerce Clause. The approaches of the courts are compared. The different political contexts are noted and in particular comment is made of the fact that the US federal government is subject to greater direct democratic controls that the Community legislators might favour a more relaxed approach from their courts. In Europe the lack of accountability means that the Court is right to be vigilant on the use of powers, but it should be careful not to become too interventionist. Europe has a young and flexible constitution, which should be amended to give clearer powers in social policy areas where Community activity is seen as desirable rather than these policies having to be treated as internal market measures.
European Review of Private Law