Opinion of the Advocate General — ECLI:EU:C:2025:29
Date: 2025-01-23
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-717/23 – 1 
Case C-717/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
27 November 2023 
Referring court: 
Verwaltungsgerichtshof (Supreme Administrative Court, Austria) 
Date of the decision to refer: 
17 November 2023 
Appellant on a point of law: 
Bundesminister für Soziales, Gesundheit, Pflege und 
Konsumentenschutz (Federal Minister for Social Affairs, Health, 
Care and Consumer Protection) 
  
Subject matter of the main proceedings 
Penalty proceedings against a tobacco wholesaler for allegedly supplying 
cigarettes in a unit packet with unlawful labelling. 
Subject matter and legal basis of the reference 
Interpretation of Directive 2014/40/EU; Article 267 TFEU 
Question referred for a preliminary ruling 
Should Article 23(2) in conjunction with point 40 of Article 2 and Article 13(1)(c) 
of 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 L 127, 
29.4.2014, p.1, be interpreted as meaning that the prohibition on placing a tobacco 
product on the market in a unit packet having elements or features relating to taste 
also covers the supplying of such a tobacco product by a wholesaler to a retail 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-717/23 
 
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outlet or only covers the sale of such a tobacco product by a retail outlet to a 
consumer? 
Provisions of European Union law cited 
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; Articles 1, 2, 
13, 15 and 23 thereof. 
Provisions of national law cited 
Tobacco Marketing and Non-Smoker Protection Act (TNRSG), Federal Law 
Gazette (BGBl.) No 431/1995, in the version in force at the material time, BGBl. I 
No 66/2019; Paragraphs 1, 2, 5d(1) subparagraph 3 and Paragraph 14 
Tobacco Monopoly Act 1996 – TabMG 1996, BGBl. No 830/1995, in the version 
in force at the material time, BGBl. I No 104/2019; Paragraphs 5, 6, 8 and 36 
Brief summary of the facts and proceedings 
1 By means of a penalty decision issued by the Grieskirchen District Commission 
(hereinafter: District Commission) on 30 May 2022 a wholesaler was found guilty 
in that the company he represents as managing director and which is involved in 
the tobacco product distribution chain placed cigarettes on the market, by 
delivering cigarettes to a particular tobacconist’s with the disclosures ‘perfectly 
rounded’ and ‘with slow curing’ on the unit packet, which relate to taste. 
2 In doing so, it was argued that the wholesaler was in breach of Paragraph 14(1) 
subparagraph 1 in conjunction with Paragraph 2(1) subparagraph 1 and 
Paragraph 5d(1) subparagraph 3 of the TNRSG, and therefore a fine of EUR 1 000 
(and a custodial sentence in lieu of a fine) was imposed on him. 
3 The wholesaler appealed the penalty decision before the Administrative Court, 
which upheld the appeal, annulled the contested penalty decision and terminated 
the administrative penalty proceedings. 
4 The Administrative Court stated, by way of reasoning, that the District 
Commission had taken the view that the ‘placing on the market’ had taken place 
by delivering the tobacco product to the tobacconist’s. Paragraph 1 subparagraph 
2 of the TNRSG reproduces the definition of ‘placing on the market’ from 
point 40 of Article 2 of Directive 2014/40/EU. It follows that ‘placing on the 
market’ takes place to consumers at retail outlets and by distance sales. The 
Austrian legislature had been content to merely reproduce this definition. Unlike 
in Germany, there are no rules in Austria which ensure that all market participants 
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in the supply chain are responsible for placing on the market. According to the 
wording of the definition, the view must therefore be taken that ‘making 
available’ to consumers refers to the keeping in stock of tobacco products for the 
purpose of direct supply to consumers, that is to say, the last step before sale to 
consumers, which takes place, for example, in a tobacconist’s. There was 
therefore no ‘placing on the market’ of the tobacco product by the wholesaler 
because he supplied it to the operator of a retail outlet (tobacconist’s), who is also 
a trader and not a consumer. 
5 The District Commission brought an appeal on a point of law (‘Revision’) against 
that decision before the Verwaltungsgerichtshof (Supreme Administrative Court). 
Subsequently, the competent federal minister took the place of the District 
Commission in the proceedings. During the appeal on a point of law, it was 
argued that, during the negotiations on Directive 2014/40/EU, Member States 
always assumed that all market participants in the distribution chain would be 
responsible for compliance with the requirements of the Directive. Otherwise, 
effective market surveillance in order to achieve and maintain a high level of 
human health protection would not be possible. 
Brief summary of the basis for the reference 
6 Directive 2014/40/EU does not expressly specify which economic operators 
involved in the tobacco product trade are to be covered by the prohibition laid 
down in Article 23(2) of Directive 2014/40/EU. Interpretation of the term ‘placing 
on the market’ seems to be decisive for the purpose of answering that question. 
7 According to point 40 of Article 2 of Directive 2014/40/EU, ‘placing on the 
market’ means to make products, irrespective of their place of manufacture, 
available to consumers located in the Union, with or without payment, including 
by means of distance sale. Directive 2014/40/EU does not contain a legal 
definition of the term ‘making products available’, which is itself a central 
element of the term ‘placing on the market’. Point 35 of Article 2 of Directive 
2014/40/EU defines a ‘consumer’ to whom products are made available, as a 
natural person who is acting for purposes which are outside his or her trade, 
business, craft or profession. Point 41 of Article 2 of Directive 2014/40/EU 
defines ‘retail outlet’ as any outlet where tobacco products are placed on the 
market including by a natural person (in the main proceedings, this is the 
tobacconist’s). 
8 The way in which the definition in point 40 of Article 2 of Directive 2014/40/EU 
is worded provides no clear answer to the question of whether a tobacco product is 
‘placed on the market’ only when it is made available to a consumer or when it is 
made available to a retail outlet. For example, while the German versions of 
point 34 of Article 2 and Article 18(1) of Directive 2014/40/EU mention cross-
border distance sales of tobacco products ‘to consumers’ [German: ‘an 
Verbraucher’], the German version of point 40 of Article 2 of Directive 
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2014/40/EU does not mention making tobacco products available ‘to consumers’, 
rather ‘for consumers’ [German: ‘für Verbraucher’]. According to the Supreme 
Administrative Court, this does not preclude an interpretation to the effect that the 
making available of the tobacco product to a retail outlet – and not only the 
making available to consumers directly – is covered by the concept of ‘placing on 
the market’. 
9 As regards the definition in point 40 of Article 2 of Directive 2014/40/EU, the 
Court of Justice has held that, according to the usual meaning of the words 
‘make … available’, a tobacco product must be regarded as having been ‘placed 
on the market’ when consumers can acquire it, which is already the case when a 
tobacco product is merely made available for sale, even before it has been 
purchased and payment has been made (judgment of the Court of 9 March 2023 in 
Case C-356/22 Pro Rauchfrei e. V., paragraph 20). If this understanding of the 
concept of ‘placing on the market’, which refers to consumers, is transposed to the 
main proceedings, the supply of a tobacco product by a wholesaler would not yet 
constitute ‘placing on the market’ since the TabMG 1996 stipulates that a 
wholesaler may fundamentally only supply the tobacco product to a tobacconist. 
Consumers, for their part, cannot acquire tobacco products from a wholesaler. 
10 The judgment in Case C-356/22 concerned the interpretation of the prohibition on 
hiding the health warnings laid down by Article 8(3) of Directive 2014/40/EU and 
not Article 13(1)(c) of Directive 2014/40/EU on the presentation of the tobacco 
product. It concerned application of the concept of ‘placing on the market’ to a 
particular form of sale of tobacco products to consumers in a retail outlet. Given 
these differences, the Supreme Administrative Court is doubtful that the remarks 
made by the Court in its judgment in Case C-356/22, paragraph 20, should be 
understood to mean that the ‘placing on the market’ of tobacco products always 
requires, irrespective of the substantive connection to a particular provision of 
Directive 2014/40/EU, the tobacco product to have been made directly available 
to a consumer (for example, by sale) and that placing on the market cannot exist at 
an earlier stage in the supply chain. Although Advocate General Tanchev in his 
opinion in Case C-370/20, Pro Rauchfrei e. V., paragraph 38, which preceded the 
judgment in Case C-356/22, stated that, it is sufficient for a tobacco product to be 
considered ‘placed on the market’, that it is made available to consumers in the 
Union, adding in parentheses: ‘(wholesale being thus excluded)’, this reasoning 
was not reproduced by the Court in its judgment in Case C-356/22. 
11 According to the Supreme Administrative Court, there are also good reasons for 
the view that a tobacco product, in so far as compliance with the rules on the 
presentation of the unit packet are concerned, is not only ‘placed on the market’ 
when it has been made directly available to a consumer. 
12 Directive 2014/40/EU uses the term ‘placing on the market’, which is described in 
general terms in point 40 of Article 2, in different substantive contexts. Some of 
these provisions prohibit the ‘placing on the market’ of certain tobacco products 
on account of their ingredients, such as Article 7(1), (6), (7) and (9), or Article 17, 
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or make ‘placing on the market’ subject to compliance with the requirements of 
the Directive, such as Article 8(1), Article 15(1) and Article 20(1) and (3)(a). 
Other provisions require manufacturers and importers to inform the national 
authorities before and after the ‘placing on the market’ of tobacco products, such 
as Article 5(1), Article 6(4), Article 19(1), Article 20(2) and Article 22(1). Others 
also refer to retail outlets where tobacco products are ‘placed on the market’ 
directly to consumers, such as point 41 of Article 2 and Article 18(2). 
13 Such a systematic reading of Directive 2014/40/EU suggests that the concept of 
‘placing on the market’, as described in general terms in point 40 of Article 2, 
may, depending on its connection to a particular substantive provision of the 
Directive and depending on the specific case, cover various economic operators 
involved in the tobacco product trade. The obligation imposed on Member States 
by Article 23(2) of Directive 2014/40/EU to ensure that tobacco products which 
do not comply with that Directive are not ‘placed on the market’ could therefore – 
depending on the substantive context and the circumstances at hand – cover 
manufacturers, importers or wholesalers on one case, whereas it may cover only 
the operators of retail outlets in another case. 
14 For example, in the main proceedings in Case C-356/22, only the operator of the 
retail outlet had, through the design of its vending machine, any influence on 
whether warnings affixed to cigarette packets were hidden in breach of the first 
sentence of Article 8(3) of Directive 2014/40/EU. In the main proceedings in this 
case, however, the manufacturer of the cigarettes (or unit packet) may design their 
presentation in accordance with the provisions of Article 13 of Directive 
2014/40/EU. But the importer or wholesaler may also decide whether or not they 
supply forward, through the tobacco product supply chain, a unit packet with 
presentation in breach of the requirements of that Directive. The same applies to 
the sale of such a product by a tobacconist at its retail outlet to a consumer. 
15 When transposing Directive 2014/40/EU, the German legislature also appears to 
have proceeded from an interpretation of the concept of ‘placing on the market’, 
which, depending on the connection to a particular provision of Directive 
2014/40/EU, may cover all or only individual economic operators involved in the 
tobacco product trade. Under national law, the definition of ‘placing on the 
market’ is intended to cover not only the direct supply of a tobacco product to the 
consumer but also any supply at each stage of the supply chain of tobacco 
products from the manufacturer through to the retail outlet.