Judgment;Summary — ECLI:EU:C:2023:174
Date: 2023-03-09
Language of the case: German
Court formation: Fifth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-356/22 – 1 
Case C-356/22 
Request for a preliminary ruling 
Date lodged: 
2 June 2022 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
24 February 2022 
Applicant and appellant on a point of law: 
Pro Rauchfrei e. V. 
Defendant and respondent in the appeal on a point of law: 
JS e. K. 
  
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
[…] 
in the case of 
Pro Rauchfrei e. V., […] Munich, 
applicant and appellant on a point of law, 
[…] 
v 
JS e. K., […] Munich, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2022 – CASE C-356/22 
 
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defendant and respondent in the appeal on a point of law, 
[…] 
Further to the hearing held on 24 February 2022 […], the First Civil Chamber of 
the Federal Court of Justice 
ordered as follows: 
I. The proceedings are stayed. 
II. The following questions on the interpretation of the first sentence of 
Article 8(3) 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 are referred to the 
Court of Justice of the European Union (‘the Court’) for a preliminary 
ruling. 
1. Does the concept of ‘placing on the market’ within the meaning 
of the first sentence of Article 8(3) of Directive 2014/40/EU 
cover the offering of tobacco products via vending machines in 
such a way that, although the cigarette packets contained in them 
display the warnings prescribed by law, the cigarette packets are 
initially stocked in the machine in such a way that they are not 
visible to the consumer, and the warnings on them become 
visible only when the customer operates the machine, which has 
previously been enabled by the cashier, and the cigarette packet 
is thus dispensed onto the checkout belt prior to the payment 
process? 
2. Does the prohibition in the first sentence of Article 8(3) of 
Directive 2014/40/EU on warnings being ‘hidden by other items’ 
cover the case in which the entire tobacco packaging is hidden 
when the goods are presented by an automatic vending machine? 
Grounds: 
1 A. The applicant is a body with standing to bring proceedings within the meaning 
of point 3 of Paragraph 8(3) of the Gesetz gegen den unlauteren Wettbewerb (Law 
on unfair competition; ‘the UWG’). The defendant operates two supermarkets in 
Munich. After 20 May 2017, it offered cigarettes for sale at the checkout points of 
those supermarkets in the automatic vending machine shown below: 
PRO RAUCHFREI 
 
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2 The cigarette packets stocked in the automatic vending machine were not visible 
to the customer. While it is true that the selection buttons on those vending 
machines made it possible to identify different brands of cigarettes, they did not, 
however, display the health warnings prescribed by law. 
3 The sale was carried out in such a way that the customer first requested the cashier 
to enable the automatic vending machine and then pressed the selection button for 
the desired cigarette brand. The cigarette packet was then conveyed from the 
machine’s dispensing device onto the checkout belt. Payment for the cigarette 
packet was then made at the checkout point, provided that the customer 
maintained his or her intention to purchase organising the sales process through 
the automatic vending machine in this way served to prevent theft and to protect 
minors. 
4 The applicant contends that the offering of cigarettes via the automatic vending 
machine operated by the defendant is unfair, in particular from the perspective of 
a breach of law owing to an infringement of the prohibition on the hiding of the 
health warnings on cigarette packets and on misleading omissions resulting from 
the withholding of information which is essential for the consumer. 
5 The applicant requested that the defendant be prohibited, on pain of judicial 
enforcement measures, from doing the following in the course of trade: 
offering tobacco products, namely cigarettes, for sale in such a way that the 
health warnings on the packets and the outer packaging are hidden at the 
time when they are offered for sale, if this is done in the manner depicted in 
Annex A [which corresponds to the image shown above]; 
in the alternative: 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2022 – CASE C-356/22 
 
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offering tobacco products, namely cigarettes, for sale in such a way that, 
instead of the product packaging, images of the packaging are presented 
without health warnings, if this is done in the manner depicted in Annex A 
[which corresponds to the image shown above]. 
6 The Landgericht (Regional Court) dismissed the action (Landgericht München I 
(Regional Court I, Munich), LMuR 2018, 215). The appeal on the merits lodged 
by the applicant was unsuccessful (Oberlandesgericht München (Higher Regional 
Court, Munich), WRP 2019, 1380). By its appeal on a point of law, for which the 
appellate court granted leave and which the defendant seeks to have dismissed, the 
applicant is continuing to pursue its claims. 
7 By order of 25 June 2020 (GRUR 2020, 1002 = WRP 2020, 1300 – 
Zigarettenausgabeautomat I), the present Chamber referred the following 
questions to the Court for a preliminary ruling on the interpretation of Article 8(3) 
and (8) of Directive 2014/40/EU on the approximation of the laws, regulations 
and administrative provisions of the Member States concerning the manufacture, 
presentation and sale of tobacco products and related products: 
1. Does the concept of ‘placing on the market’ within the meaning of the 
first sentence of Article 8(3) of Directive 2014/40/EU cover the 
offering of tobacco products via vending machines in such a way that, 
although the cigarette packets contained in them display the warnings 
prescribed by law, the cigarette packets are initially stocked in the 
machine in such a way that they are not visible to the consumer, and 
the warnings on them become visible only when the customer operates 
the machine, which has previously been enabled by the cashier, and 
the cigarette packet is thus dispensed onto the checkout belt prior to 
the payment process? 
2. Does the prohibition in the first sentence of Article 8(3) of Directive 
2014/40/EU on warnings being ‘hidden by other items’ cover the case 
in which the entire tobacco packaging is hidden when the goods are 
presented by an automatic vending machine? 
3. Is the criterion of ‘images of unit packets’ in Article 8(8) of Directive 
2014/40/EU satisfied even if an image is not a faithful depiction of the 
original packaging, but the consumer associates the image with 
tobacco packaging on account of its design in terms of outline, 
proportions, colour and brand logo? 
4. Are the requirements of Article 8(8) of Directive 2014/40/EU satisfied 
even if the consumer has the opportunity to see the cigarette packaging 
with the prescribed warnings prior to the conclusion of the contract of 
sale, irrespective of the depiction used? 
8 The Court ruled on those questions as follows by judgment of 9 December 2021 
(C-370/20, […] Pro Rauchfrei): 
PRO RAUCHFREI 
 
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1. Article 8(8) 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 must be 
interpreted as meaning that an image which, although not a faithful 
depiction of a packet of cigarettes, is associated by the consumer with 
such a packet on account of its design in terms of outline, proportions, 
colours and brand logo constitutes an ‘image of a unit packet’ within 
the meaning of that provision. 
2. Article 8(8) of Directive 2014/40/EU must be interpreted as meaning 
that an image of a cigarette packet which is covered by that provision 
but on which the health warnings referred to in Chapter II of Title II of 
the directive are not visible is not compatible with that provision even 
if, prior to purchasing the packet of cigarettes, the consumer has the 
opportunity to see those warnings on the packet of cigarettes which 
corresponds to the image. 
9 B. The success of the appeal on a point of law depends primarily on the 
interpretation of Article 8(3) of Directive 2014/40/EU 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. Before a 
ruling can be given on the applicant’s appeal on a point of law, the proceedings 
must therefore be stayed and a preliminary ruling obtained from the Court 
pursuant to point (b) of the first paragraph and the third paragraph of Article 267 
TFEU. 
10 I. The court that ruled on the appeal on the merits proceeded on the assumption 
that both the main claim and the claim in the alternative were unfounded because, 
when cigarettes were placed on the market by means of the automatic vending 
machine at issue, the health warnings prescribed in relation to the design of the 
packet were not hidden and, moreover, depictions/images of cigarette packets 
without such warnings were not displayed. It stated the following in that regard: 
11 The main claim seeking an injunction prohibiting the hiding of the health 
warnings affixed to the cigarette packets is unfounded. There is not an unfair 
commercial practice in terms of a breach of law. The statutory prohibition of the 
hiding of warnings does not cover selling arrangements such as the stocking of 
cigarette packets ‘under lock and key’ in the automatic vending machine at issue. 
Hiding of the warnings could not be assumed in any event if the consumer – as in 
the present case – was able to perceive the specific packet of cigarettes to be 
purchased bearing the unconcealed health warning prior to the conclusion of the 
contract of sale and to make his or her purchasing decision, or decide not to 
purchase, in awareness of the unconcealed warnings on the packet. 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2022 – CASE C-356/22 
 
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12 Nor is there a misleading omission. By using the automatic vending machine at 
issue, the defendant did not withhold from the consumer any information which 
was essential for his or her transactional decision. Prior to the conclusion of the 
contract of sale in each case, the consumer was able to become aware of the 
warnings on the cigarette packet selected for purchase and dispensed from the 
automatic vending machine onto the checkout belt. 
13 The claim in the alternative is also unfounded. The statutory requirement that 
images of packaging must also contain the health warnings serves to prevent 
circumvention of the labelling rules. It applies only if the image of the packaging 
is used in the dealings with the consumer instead of the packaging itself being 
presented. This is not the case in the present dispute because the consumer is able 
to become aware of the packaging itself and the warnings thereon prior to the 
conclusion of the contract of sale. 
14 II. The Court has hitherto not answered Questions 1 and 2 raised by the present 
Chamber in its order of 25 June 2020 in relation to the interpretation of 
Article 8(3) of Directive 2014/40/EU, whereby those questions require 
clarification and are relevant to the decision on the main claim, which is to be 
examined on a priority basis. Therefore, those questions are referred to the Court 
once more because, for legal reasons, the Chamber is unable to rule on the present 
case without the requested preliminary ruling. 
15 1. Under the third paragraph of Article 267 TFEU, the Chamber is obliged to refer 
Questions 1 and 2, which, in the present case, are relevant to the decision to be 
given on the main claim and require clarification. 
16 a) In accordance with point (b) of the first paragraph of Article 267 TFEU, in 
conjunction with the first paragraph of Article 288 thereof, the Court is to rule on 
the interpretation of directives within the meaning of the third paragraph of 
Article 288 TFEU by way of the preliminary ruling procedure. Where any such 
question of interpretation is raised in a case pending before a court or tribunal of a 
Member State against whose decisions there is no judicial remedy under national 
law, that court or tribunal is to bring the matter before the Court (third paragraph 
of Article 267 TFEU). According to the Court’s settled case-law, a national court 
or tribunal against whose decisions there is no judicial remedy under national law 
cannot be relieved of that obligation unless it has established that the question 
raised is irrelevant or that the EU law provision in question has already been 
interpreted by the Court or that the correct application of EU law is so obvious as 
to leave no scope for any reasonable doubt (see CJEU, judgment of 6 October 
1982, C-283/81, ECR 1982, p. 3415, paragraph 21 […] CILFIT v Ministero della 
Sanità; judgment of 1 October 2015 – C-452/14, […] paragraph 43 – Doc 
Generici; and judgment of 6 October 2021, C-561/19, […] paragraph 33 – 
Consorzio Italian Management e Catania Multiservizi and Catania Multiservizi). 
17 b) In accordance with those principles, the Chamber, against whose decisions 
there is no judicial remedy under German law, stated in its order of 25 June 2020 
PRO RAUCHFREI 
 
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that the success of the appeal on a point of law depends decisively on the answer 
to the questions concerning the interpretation of the first sentence of Article 8(3) 
of Directive 2014/40/EU, which relate to the main claim, require clarification and 
are set out in Questions 1 and 2 ([…] paragraphs 13 to 47 – 
Zigarettenausgabeautomat I). Reference is made to that reasoning. 
18 2. The obligation of the Chamber to refer Questions 1 and 2 to the Court for a 
preliminary ruling has not been nullified as a result of the Court’s judgment of 
9 December 2021 ([…] Pro Rauchfrei). The Court only answered Questions 3 and 
4 in its judgment. However, those questions relate to the claim asserted only in the 
alternative by the applicant and – under national law, which must be applied by 
the Chamber – can become relevant to the decision only if the main claim is 
unsuccessful. The success of the main claim depends, in turn, on the Court’s prior 
answers to Questions 1 and 2, which must be examined on a priority basis. 
19 a) In proceedings under Article 267 TFEU, which are based on a clear separation 
of functions between the national courts or tribunals and the Court of Justice, the 
national court or tribunal alone has jurisdiction to find and assess the facts in the 
case before it and to interpret and apply national law. Similarly, it is solely for the 
national court, before which the dispute has been brought and which must assume 
responsibility for the judicial decision to be made, to determine, in the light of the 
particular circumstances of the case, both the need for and the relevance of the 
questions that it submits to the Court (CJEU, […] paragraph 35 – Consorzio 
Italian Management e Catania Multiservizi and Catania Multiservizi, with further 
references). In that regard, it should be taken into account that questions on the 
interpretation of EU law referred by a national court in the factual and legislative 
context which that court is responsible for defining, the accuracy of which is not a 
matter for the Court to determine, enjoy a presumption of relevance. The Court 
may refuse to rule on a question referred by a national court only where it is quite 
obvious that the interpretation of EU law that is sought bears no relation to the 
actual facts of the main action or its object, where the problem is hypothetical, or 
where the Court does not have before it the factual or legal material necessary to 
give a useful answer to the questions submitted to it (CJEU, judgment of 
10 February 2022, C-219/20, […] paragraph 20 – Bezirkshauptmannschaft 
Hartberg-Fürstenfeld, with further references). 
20 b) In its order of 25 June 2020, the Chamber stated that the merits of the main 
claim depend on the answers to Questions 1 and 2 ([…] paragraphs 13 to 47 – 
Zigarettenausgabeautomat I). It also explained to the Court that the success of the 
claim in the alternative and Questions 3 and 4, referred in relation to that claim, 
become relevant to the decision only if the answers to Questions 1 and 2 lead to 
the conclusion that the main claim is unfounded ([…] paragraph 48 – 
Zigarettenausgabeautomat I). 
21 c) On those grounds, the Chamber fulfilled the task – for which, in accordance 
with the case-law of the Court set out above, it must assume responsibility – of 
determining, in the light of the particular circumstances of the case, both the need 
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for and the relevance of the questions that it submits to the Court. In accordance 
with the principle that the parties themselves delimit the subject matter of 
proceedings, which, under German law of civil procedure, is relevant to the 
adversarial proceedings being conducted in the present case, the applicant can 
base its action on several claims in the form of a main claim and a claim in the 
alternative (Paragraphs 260 and 308(1) of the Zivilprozessordnung (Code of civil 
procedure; ‘the ZPO’)). The Chamber must respect the relationship of dependence 
stipulated by the applicant, whereby the claim in the alternative must not be ruled 
on before the main claim has been ruled on (Paragraph 308(1) of the ZPO; see 
BGH, judgment of 20 January 1989 – VZR 137/87, […] paragraph 11] […]). 
Accordingly, for legal reasons, it is necessary that Questions 1 and 2, set out by 
the Chamber in relation to the main claim, are answered on a priority basis. 
[…] 
Previous instances: 
Regional Court I, Munich, decision of 5 July 2018 – 17 HKO 17753/17; Higher 
Regional Court, Munich, decision of 25 July 2019 – 29 U 2440/18.