# C_2023071EN.01003501.xml

| 27.2.2023 | EN | Official Journal of the European Union | C 71/35 |
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27.2.2023

EN

Official Journal of the European Union

C 71/35

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Action brought on 21 December 2022 — Broad Far (Hong Kong) and M21 v Commission

(Case T-791/22)

(2023/C 71/46)

Language of the case: Italian

Parties

Applicants: Broad Far (Hong Kong) Ltd (Wanchai, Hong Kong, China) and M21 Srl (San Donato Milanese, Italy) (represented by: F. Specchiale, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul Delegated Directive (EU) 2022/2100 (1) of 29 June 2022; |
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annul Delegated Directive (EU) 2022/2100 (1) of 29 June 2022;

| — | annul and/or disapply Article 27(2) of Directive 2014/40/EU (2) of 3 April 2014 in so far as it provided for the tacit extension of the delegation which lapsed on 19 May 2019; |
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annul and/or disapply Article 27(2) of Directive 2014/40/EU (2) of 3 April 2014 in so far as it provided for the tacit extension of the delegation which lapsed on 19 May 2019;

| — | order the defendant to pay the costs of the applicants’ lawyer. |
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order the defendant to pay the costs of the applicants’ lawyer.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

| 1. | First plea in law, alleging infringement of Article 290 TFEU of 25 March 1957, on the basis that it was misapplied, and infringement of Article 11(6) of Directive 2014/40/EU on the basis that the Commission acted ultra vires.






  — | In that regard, the applicants claim that the Commission’s power to adopt delegated measures is subject to rigorous limits and that delegated measures cannot modify the essential elements of the provisions underlying them. However, in the present case, the Commission goes so far as to equate heated tobacco products with smoking products, and in doing so modifies Community law (see Article 2 of Directive 2014/40/EU) which considers products for smoking to be only those involving a combustion process. |
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1.

First plea in law, alleging infringement of Article 290 TFEU of 25 March 1957, on the basis that it was misapplied, and infringement of Article 11(6) of Directive 2014/40/EU on the basis that the Commission acted ultra vires.

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In that regard, the applicants claim that the Commission’s power to adopt delegated measures is subject to rigorous limits and that delegated measures cannot modify the essential elements of the provisions underlying them. However, in the present case, the Commission goes so far as to equate heated tobacco products with smoking products, and in doing so modifies Community law (see Article 2 of Directive 2014/40/EU) which considers products for smoking to be only those involving a combustion process.

| 2. | Second plea in law, alleging infringement of Article 290 TFEU of 25 March 1957, on the basis that it was misapplied in various senses.






  — | In that regard, the applicants claim that the second subparagraph of Article 290(1) TFEU provides that ‘the objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts’. However, Article 27(2) of Directive 2014/40 provides that ‘... the delegation of power shall be tacitly extended for periods of an identical duration ...’. In so far as Article 27(2) provides for the extension of the delegation of power, it runs counter to Article 290 TFEU because, in essence, it deprives the democratically elected and appointed institutions at the heart of the European Union (namely the European Parliament and the European Council) of their power. |
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2.

Second plea in law, alleging infringement of Article 290 TFEU of 25 March 1957, on the basis that it was misapplied in various senses.

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In that regard, the applicants claim that the second subparagraph of Article 290(1) TFEU provides that ‘the objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts’. However, Article 27(2) of Directive 2014/40 provides that ‘... the delegation of power shall be tacitly extended for periods of an identical duration ...’. In so far as Article 27(2) provides for the extension of the delegation of power, it runs counter to Article 290 TFEU because, in essence, it deprives the democratically elected and appointed institutions at the heart of the European Union (namely the European Parliament and the European Council) of their power.

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(1)  Commission Delegated Directive (EU) 2022/2100 of 29 June 2022 amending Directive 2014/40/EU of the European Parliament and of the Council as regards the withdrawal of certain exemptions in respect of heated tobacco products (OJ 2022 L 283, p. 4).

(2)  Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1).

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