Opinion of the Advocate General — ECLI:EU:C:2025:652
Date: 2025-09-04
Language of the case: Dutch

Summary C-155/24 – 1 
Case C-155/24 
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:  
28 February 2024 
Referring court:  
College van Beroep voor het bedrijfsleven (Netherlands) 
Date of the decision to refer:  
27 February 2024 
Applicants on appeal:  
Nederlandse Voedsel- en Warenautoriteit 
Staatssecretaris van Volksgezondheid, Welzijn en Sport 
Philip Morris Benelux BV 
Philip Morris Investments BV 
JT International Company Netherlands BV 
Vereniging Nederlandse Sigaretten- & Kerftabakfrabikanten 
Van Nelle Tabak Nederland BV 
British American Tobacco International (Holdings) BV 
Defendant on appeal:  
Stichting Rookpreventie Jeugd 
  
Subject matter of the main dispute 
The case in the main proceedings concerns a request made by the Stichting 
Rookpreventie Jeugd (Youth Smoking Prevention Foundation) (‘Foundation’) to 
the Nederlandse Voedsel- en Warenautoriteit (Netherlands Food and Consumer 
Product Safety Authority) (‘NVWA’) to ensure that, when used as intended, filter 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-155/24 
 
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cigarettes on the Dutch market comply with the maximum emission levels for tar, 
nicotine and carbon monoxide in cigarettes (‘maximum emission levels’) laid 
down in Directive 2014/40/EU (‘Directive’). 
Subject matter and legal basis of the request 
This request under Article 267 TFEU concerns the interpretation of Articles 3 and 
4 of the Directive. It follows from those provisions taken together that 
undertakings are prohibited from placing on the market or manufacturing 
cigarettes in the Member States that exceed the maximum emission levels laid 
down in the Directive, measured according to the ISO standards prescribed 
therein. 
Questions referred for a preliminary ruling 
‘1) Is Article 4(1) of Directive 2014/40/EU to be interpreted as meaning that 
ISO standards not published in the Official Journal of the European Union cannot, 
without exception, be enforced against individuals, including the Foundation, even 
if that individual was able to inspect those standards and obtain them (against 
payment)? 
2) Is the unenforceability of Article 4(1) of Directive 2014/40/EU against 
individuals, in so far as that provision refers to ISO standards not published in the 
Official Journal of the European Union, to be understood as meaning that it is not 
permitted to refuse the right to respect the maximum emission levels for tar, 
nicotine and carbon monoxide laid down in Article 3(1) of the Directive? 
3) Is the expression ‘consumed as intended’, which is included in the definition 
of ‘emissions’ in Article 2(21) of Directive 2014/40/EU, to be interpreted as 
meaning that it is approximated as closely as possible to human smoking 
behaviour, in which case the measurement would have to take into account the at 
least partial covering of the micro-ventilation holes in the cigarette filter and/or 
the volume and frequency of smoke, or does that expression refer only to the 
method of consuming cigarettes through a process of combustion? 
4) If, in view of the answer to question 3, the ISO standards referred to in 
Article 4(1) of Directive 2014/40/EU are not suitable for measuring emission 
levels: a) does a high level of public health protection, in particular for young 
people, which Directive 2014/40/EU includes as one of its objectives, mean that 
the principles of legal certainty and legal precision of the applicable law do not 
preclude an alternative method of measurement from being enforced against 
tobacco manufacturers? 
If, also having regard to the principles of legal certainty and legal precision of the 
applicable law, question 4a) is answered in the affirmative: 
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4b) are Member States authorised to establish or apply an alternative measurement 
method themselves, whether temporarily or otherwise, and to enforce this 
alternative measurement method (also) against tobacco manufacturers, and 
4c) how does the application of an alternative measurement method relate to the 
(maximum) harmonisation and improved functioning of the internal market, 
which Directive 2014/40/EU includes amongst its objectives? 
5a) In the event that an alternative measurement method has to be applied, do the 
maximum emission levels of Article 3(1) of Directive 2014/40/EU remain fully 
applicable? 
If question 5a) is answered in the negative: 
5b) are Member States authorised to adopt or apply themselves, whether 
temporarily or otherwise, alternative maximum emission levels and to enforce 
these (also) against tobacco manufacturers, and 
5c) how does the application of alternative maximum emission levels relate to the 
(maximum) harmonisation and improved functioning of the internal market, 
which Directive 2014/40/EU includes amongst its objectives? 
6a) If Member States are authorised to adopt or implement an alternative 
measurement method and that method can be enforced against tobacco 
manufacturers, in that case, does a high level of public health protection, in 
particular for young people, which Directive 2014/40/EU includes amongst its 
objectives, in combination with Article 23(2) of the Directive, mean in that case 
that cigarettes on the market in the Netherlands must be withdrawn from the 
market until a new measurement method has been established, such that it cannot 
be determined whether the cigarettes consumed as intended comply with the 
maximum emission levels? 
If question 6a) is answered in the affirmative: 
6b) Are tobacco manufacturers entitled to a transitional period in that case? 
7) If an alternative measurement method has been established or implemented, 
whether or not in combination with alternative maximum emission levels, are 
tobacco manufacturers in that case entitled to a transitional period during which 
they can adapt to that alternative measurement method and any alternative 
maximum emission levels?’ 
Provisions of EU law and case-law of the Union courts relied on 
Recitals 8 and 51, Article 2(10) and (21), Article 3(1) and (2), Article 4(1) and (3) 
and Article 23(2) of the Directive 
Charter of Fundamental Rights of the European Union, Articles 24 and 35 
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Judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others 
(C-160/20, EU:C:2022:101) (‘Stichting Rookpreventie judgment’) 
Judgment of 11 December 2007, Skoma-Lux (C-161/06, EU:C:2007:773) 
(‘Skoma-Lux judgment’) 
Provisions of national law and national case-law relied on 
Articles 1, 14 and 17a of the Act of 10 March 1988, containing measures to 
restrict tobacco consumption, in particular to protect non-smokers 
Article 2.1 of the Order of 14 October 2015, merging the general administrative 
measures based on the Tobacco Act into one order 
Articles 1.1 and 2.1 of the Regulation of the State Secretary for Health, Welfare 
and Sport of 10 May 2016 laying down rules for the manufacture, presentation 
and sale of tobacco products and related products 
Ruling of the rechtbank Rotterdam (District Court of Rotterdam) of 20 March 
2020 (ECLI:NL:RBROT:2020:2382) 
Ruling of the rechtbank Rotterdam (District Court of Rotterdam) of 04 November 
2022 (ECLI:NL:RBROT:2022:9297) 
Ruling of the College van Beroep voor het bedrijfsleven (Administrative Court of 
Appeal for Trade and Industry, Netherlands) of 3 April 2012 
(ECLI:NL:CBB:2012:BW2472) 
Ruling of the Afdeling bestuursrechtspraak van de Raad van State (Administrative 
Law Division of the Council of State, Netherlands) of 2 February 2011 
(ECLI:NL:RVS:2011:BP2750) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The maximum emission levels in cigarettes laid down in Article 3(1) of the 
Directive were determined on the basis of a method widely accepted in the 
scientific community as best approximating the intended consumption of a 
cigarette. However, research from 2018 by the Rijksinstituut voor 
Volksgezondheid en Milieu (National Institute for Public Health and the 
Environment) (‘RIVM’) shows that when emissions from cigarettes are measured 
using the so-called Canadian Intense method, these maximum emission levels are 
greatly exceeded. 
2 The Foundation asked the NVWA to have filter cigarettes measured according to 
the Canadian Intense method that do not meet these maximum emission levels 
withdrawn from the market. On 20 September 2018, the NVWA refused the 
Foundation’s request. The Foundation lodged an objection to this, which was 
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dismissed by a decision dated 31 January 2019. The Foundation then appealed the 
latter decision to the rechtbank Rotterdam (District Court of Rotterdam) (‘District 
Court’). On 20 March 2022, the District Court referred preliminary questions to 
the Court concerning the validity and interpretation of Article 4(1) of the 
Directive. 
3 In the Stichting Rookpreventie judgment, the Court held that the ISO standards 
referred to in Article 4(1) of the Directive could not be enforced against 
individuals because they had not been published in the Official Journal of the 
European Union (‘Official Journal’). According to the Court, it is for the national 
court to determine whether the methods actually used to measure maximum 
emission levels comply with the Directive, without taking into consideration 
Article 4(1) thereof. 
4 Accordingly, in its ruling of 4 November 2022, the District Court held that the 
ISO standards could not be enforced against the Foundation and that the method 
used in the Directive to determine maximum emission levels was inconsistent 
with the Directive because it did not measure the level of emissions released 
during the intended consumption of a cigarette. It is therefore impossible to 
determine whether filter cigarettes sold in the Netherlands comply with the 
maximum emission levels. The District Court upheld the appeal. 
5 The applicants on appeal appealed to the referring court against that judgment. 
The Foundation lodged an incidental appeal. At the beginning of 2023, the RIVM, 
commissioned by the NVWA, measured emission levels based on the WHO 
TobLabNet SOP 01 method (Standard operating procedure for intense smoking of 
cigarettes). These results also show the maximum emission levels being exceeded. 
The essential arguments of the parties in the main proceedings 
6 According to the Foundation, the ISO standards prescribed in Article 4(1) of the 
Directive do not sufficiently approximate the intended consumption. This is 
because the method used in the Directive does not take into account how a 
cigarette is smoked in practice, namely by covering the holes in the filter with the 
lips and fingers. 
7 The Foundation, the NVWA and the State Secretary are of the opinion that the 
term ‘consumed as intended’ in Article 2(21) of the Directive refers to consuming 
a cigarette by inhaling cigarette smoke, approximating human smoking behaviour 
as closely as possible. A smoker covers the ventilation holes in the cigarette’s 
filter with his fingers and lips, thus inhaling deeper and more frequently. The 
measurement method must take this into account. 
8 By contrast, according to Philip Morris Benelux BV, Philip Morris Investments 
BV, JT International Company Netherlands BV, Van Nelle Tabak Nederland BV 
and British American Tobacco International (Holdings) BV (‘tobacco 
manufacturers’), the term refers only to the burning of the cigarette and the 
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consequent generation of smoke, and therefore no consideration needs to be given 
to the covering of the ventilation holes. They refer in that regard to the definition 
of the term ‘cigarette’ in Article 2(10) of the Directive. 
9 Furthermore, the tobacco manufacturers take the view that the term ‘enforce’ 
relates to an obligation, and not to the withholding of a right to enforce emission 
levels independently of the prescribed emission standards. Invocation can only be 
said to exist if there is an obligation on a concerned party. The obligations under 
Articles 3 and 4 rest only on manufacturers, importers and distributors in the 
tobacco industry and not on the Foundation. Consequently, according to the 
tobacco companies, the Foundation cannot derive any rights from those articles. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 At issue in the main proceedings is whether the maximum emission levels set out 
in the Directive are being exceeded. The referring court notes that Articles 3 and 4 
are not clear on all points and that it encounters difficulties in interpreting the 
scope of the Stichting Rookpreventie judgment. Moreover, it is also unclear to the 
court whether enforcement action can be taken against the tobacco companies. 
11 First, the referring court asks how the phrase ‘the public generally’ is to be 
understood. This is relevant to determine against whom the ISO standards set out 
in the Directive can be enforced. In the Stichting Rookpreventie judgment, the 
Court held that those standards could be enforced against undertakings 
(paragraph 52) but not against the public generally, due to the lack of publication 
in the Official Journal (paragraphs 48, 51 and 73). In view of the different ways in 
which that phrase is used in the judgment and the different language versions of 
the judgment, it is not clear to the referring court whether it means that the ISO 
standards cannot be enforced against the public generally in the sense of ‘the 
general public’ or whether it refers to standards that cannot be enforced generally, 
i.e. in principle, not against individuals. 
12 In addition, the referring court wonders whether ISO standards may nevertheless 
be enforced against individuals if they have actually been able to take cognisance 
of those standards, like the Foundation in this case. The court refers in this regard 
to paragraph 48 of the Skoma-Lux judgment. Moreover, the Foundation represents 
the interests of individuals, who have no knowledge of these ISO standards, and 
the Foundation obtained the standards precisely in the context of these 
proceedings. To enforce the ISO standards in those circumstances would mean 
that the Foundation could not achieve the objective pursued by these proceedings 
and therefore does not seem tenable to the referring court. 
13 Building on the above, the referring court asks, second, what is to be understood 
by the term ‘enforce’. In its ruling of 4 November 2022, the rechtbank Rotterdam 
(District Court of Rotterdam) held that this term both relates to an obligation and 
provides the possibility of withholding a right. In that case, it seems plausible, 
according to the referring court, that the inability to enforce Article 4(1) of the 
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Directive, and the reference therein to the ISO standards, against the Foundation 
must be understood as meaning that it may not be deprived of the right to enforce 
the maximum emission levels laid down in Article 3(1) of the Directive, 
independently of the ISO standards prescribed in Article 4(1) of the Directive. 
14 Third, the referring court wishes to know what measurement methods are 
appropriate for measuring the maximum emission levels of tar, nicotine and 
carbon monoxide in cigarettes released during the intended consumption of a 
cigarette and, in particular, what is to be understood by ‘consumed as intended’ as 
referred to in Article 2(21) of the Directive. Firstly, it follows from paragraph 74 
of the Stichting Rookpreventie Jeugd judgment that it is for the referring court to 
assess whether the methods actually used to measure the maximum emission 
levels comply with the Directive. The referring court infers from this that these are 
not necessarily ISO standards. Secondly, partly in view of the other language 
versions, the phrase ‘intended consumption’ must, according to the referring 
court, be understood as ‘use as intended’. However, it is unclear whether this 
refers to approximating human smoking behaviour as much as possible, 
generating smoke through the process of combustion, or a combination of both. In 
the first case, when measuring maximum emission levels, smoke volume and 
smoke frequency would be decisive and the ventilation holes would have to be at 
least partially covered, which does not happen when measuring maximum 
emission levels according to ISO standards. In that case, therefore, ISO standards 
would not be suitable for measuring the maximum emission levels released during 
the intended consumption of a cigarette. 
15 If the ISO standards are unsuitable, the referring court asks, fourth, whether a 
different measurement method could possibly be used and whether that method 
could then be enforced against the tobacco manufacturers. After all, tobacco 
manufacturers are obliged to apply ISO standards. The referring court wishes to 
know how any new obligations relate to the principle of legal precision of the 
applicable law and the principle of legal certainty. In line with this, the question 
arises as to whether any negative impact on tobacco manufacturers can be justified 
by the objective pursued by the Directive of a high level of public health 
protection. Moreover, the referring court also wishes to know whether the 
Member States themselves, and not the European Commission as stipulated in 
Article 4(3) of the Directive, can establish this measurement method and enforce 
it against tobacco manufacturers. In that context, the court also questions how this 
would relate to the objective pursued by the Directive of (maximum) 
harmonisation and improved functioning of the internal market for tobacco 
products, and whether it would be in line with Article 24 of the Directive on free 
circulation. 
16 Fifth, if a different measurement method is to be applied, the referring court asks 
whether the maximum emission levels of Article 3(1) still apply. The question 
thus arises as to whether there is an intrinsic link between, on the one hand, the 
ISO standards set out in Article 4(1) and, on the other hand, the maximum 
emission levels set out in Article 3, and whether Member States are allowed to set 
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alternative maximum emission levels themselves, temporarily or otherwise, and to 
enforce them against tobacco manufacturers, and how this relates to the objective 
pursued, among others, by the Directive of (maximum) harmonisation and 
improved functioning of the internal market. 
17 The referring court points out that the Directive allows maximum emission levels 
to be reduced and measurement methods to be adapted (see Articles 3(2) and 
4(3)). There is nothing to suggest that this could not happen separately. In that 
regard, the court refers to Recital 51 of the Directive. As such, if there is no 
intrinsic connectedness, when applying an alternative measurement method, the 
maximum emission levels of Article 3(1) may remain fully applicable. 
18 Sixth, in the event that the ISO standards are not suitable for measuring maximum 
emission levels and an alternative measurement method can be enforced against 
the tobacco manufacturers, without it already being clear what that method is and 
to what results it will lead, the referring court wonders what the consequences 
should be in the meantime and, in particular, whether the cigarettes currently sold 
in the Netherlands should be withdrawn from the market for the time being. 
19 Finally, the referring court wishes to know whether tobacco manufacturers can 
claim a transitional period to adapt to an alternative measurement method and/or 
alternative maximum emission levels, if appropriate.