Judgment;Summary — ECLI:EU:C:2025:960
Date: 2025-12-11
Language of the case: Dutch
Court formation: Seventh Chamber
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary C-665/24 – 1 
Case C-665/24 
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: 
11 October 2024 
Referring court: 
College van Beroep voor het bedrijfsleven (Netherlands) 
Date of the decision to refer: 
8 October 2024 
Appellant: 
Staatssecretaris Jeugd, Preventie en Sport 
Respondents: 
Diamond Flavours BV 
UEG Holland BV 
  
Subject matter of the main proceedings 
Appeal by the staatssecretaris van Jeugd, Preventie en Sport (Netherlands Minister 
for Youth, Prevention and Sport) (‘the Minister’) against a decision of the 
rechtbank Rotterdam (District Court, Rotterdam, Netherlands) (‘the District 
Court’) upholding the appeal brought by the respondents against the 
administrative fines imposed on them by the Minister for placing on the market 
refill containers for electronic cigarettes displaying an incorrect nicotine content. 
Subject matter and legal basis of the request 
Request on the basis of Article 267 TFEU for interpretation of certain provisions 
of Directive 2014/40. The referring court asks the Court of Justice to clarify the 
concept of ‘placing on the market’ within the meaning of point 40 of Article 2 of 
that directive as well as regarding culpability in respect of infringements of the 
obligations imposed by Article 20(2) of that directive on persons who place refill 
containers for electronic cigarettes on the market. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-665/24 
 
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Questions referred for a preliminary ruling 
1. Must Article 23(2), read in conjunction with point 40 of Article 2 and 
Article 20(4)(b)(i), 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 be interpreted as meaning that the obligation on Member States to 
ensure that refill containers whose unit packets do not include an accurate 
indication of their nicotine content are not placed on the market covers not only 
the sale of those refill containers at or by a retail outlet, but also their supply to a 
retail outlet? 
2. If the answer to the first question is in the affirmative, in a situation such as 
that at issue here where an administrative fine has been imposed, can an economic 
operator who has purchased refill containers from a manufacturer or importer 
within the meaning of Directive 2014/40 be held responsible and thus be blamed 
for having placed on the market refill containers whose unit packets include an 
incorrect indication of their nicotine content, even though the nicotine content 
indicated on the unit packet corresponds to the nicotine content of that refill 
container as stated in the notification within the meaning of Article 20(2) of 
Directive 2014/40? 
Provisions of law and case-law relied on 
European Union law 
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: Article 2, 
points 17, 30, 37, 38, 39, 40 and 41, Article 20(1), (2), (4)(b)(i) and (9), and 
Article 23(2) and (3), recitals 21 and 36 
Charter of Fundamental Rights of the European Union: Article 48 
Judgment of the Court of Justice of 9 March 2023, Pro Rauchfrei II (C-356/22, 
EU:C:2023:174) 
Opinion of Advocate General Kokott of 16 February 2017, Túrkevei Tejtermelő 
Kft (C-129/16, EU:C:2017:136) 
Case C-717/23, pending. 
National law 
STAATSSECRETARIS JEUGD, PREVENTIE EN SPORT 
 
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Tabaks- en rookwarenwet (Law on tobacco and smoking products) (‘the Law’): 
Article 1(1), Article 2(2)(a), Article 3(1), Article 11b(1) 
Tabaks- en rookwarenbesluit (Decree on tobacco and smoking products) (‘the 
Decree’): Article 3.3 
Tabaks- en rookwarenregeling (Regulation on tobacco and smoking products) 
(‘the Regulation’): Article 3.10, first paragraph 
Ruling of the referring court of 9 August 2022, ECLI:NL:CBB:2022:510 
Comparison of concepts in European Union law and national law 
Unlike the definitions in the Law of the terms ‘placing on the market’, ‘retail 
outlet’, ‘manufacturer’ and ‘refill container’ – which correspond to the definitions 
of those terms laid down in Directive 2014/40 – the term ‘importer of tobacco 
products and related products’ in the Law has a different meaning from that of the 
term ‘importer of tobacco or related products’ in Directive 2014/40. While this 
term is defined in the directive as ‘the owner of, or a person having the right of 
disposal over, tobacco or related products that have been brought into the territory 
of the Union’, for the purposes of the Law this term refers to ‘the owner of, or a 
person having the right of disposal over, tobacco products and related products 
that have been brought into the Netherlands’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 An inspector from the Nederlandse Voedsel- en Warenautoriteit (Netherlands 
Food and Consumer Product Safety Authority) bought five refill containers for 
electronic cigarettes on websites of different retail outlets and took samples from 
them. The inspector found that the nicotine content of those refill containers was 
lower (ranging between 9.9 mg/ml and 10.7 mg/ml) than stated on the unit packet 
of those refill containers (12 mg/ml). 
2 The refill containers were purchased by retail outlets from the respondents, who in 
turn had purchased them from a manufacturer in France or from importers based 
abroad who had imported them into the European Union from the United States, 
the country of manufacture. 
3 By decisions dated 18 and 25 October 2019, the Minister imposed five 
administrative fines of EUR 450 each on the respondents. By five decisions dated 
21 February 2020, the Minister declared the respondents’ objections unfounded 
and upheld the administrative fines. The respondents appealed against those 
decisions to the District Court, which upheld the appeal by judgment of 7 April 
2021 on the grounds that the respondents had not placed the refill containers on 
the market. The Minister appealed against that judgment to the College van 
Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and 
Industry, Netherlands), the referring court. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-665/24 
 
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The essential arguments of the parties in the main proceedings 
4 The Minister disagrees with the District Court’s finding that the respondents did 
not place the refill containers on the market. Indeed, it follows from both 
Directive 2014/40 and the Law that the term ‘placing on the market’ means to 
‘make products […] available to consumers’, which, according to him, includes 
all stages between manufacture and consumer. 
5 In support of his position, the Minister refers first to the purpose of Directive 
2014/40 and the Law. Recital 21 of Directive 2014/40 states that one of the 
purposes of the directive is to facilitate the smooth functioning of the internal 
market for tobacco and related products, taking as a base a high level of health 
protection, especially for young people. To achieve that goal, a large number of 
requirements are imposed on tobacco and related products. In many cases, these 
requirements are linked to the ‘placing on the market’ of tobacco and related 
products and include indications and information on unit packets. A narrow 
interpretation of the concept of ‘placing on the market’ would mean that, in the 
distribution chain of tobacco and related products, only the retail outlet would 
have to comply with those requirements, when it is precisely the retail outlet that 
has the least influence in that regard. Such a narrow interpretation therefore runs 
counter to the objective pursued by Directive 2014/40 and the Law. 
6 The Minister also argues that the District Court’s narrow interpretation of the 
concept of ‘placing on the market’ is inconsistent with the concept of 
‘manufacturer’ as defined in Directive 2014/40 and the Law. It follows from that 
definition that a manufacturer also places tobacco or related products on the 
market. If the opinion of the District Court were to be followed, there can only be 
a manufacturer within the meaning of Directive 2014/40 and the Law if the person 
or legal entity manufacturing a tobacco or related product, or having it designed or 
manufactured, also sells the tobacco or related product – as a retail outlet – to 
consumers. Furthermore, Article 20(2) of Directive 2014/40 imposes obligations 
on manufacturers and importers who intend to place refill containers on the 
market. It is apparent from recital 36 of Directive 2014/40 that the purpose of 
those obligations is to enable Member States to carry out their surveillance and 
control tasks. It also follows that manufacturers and importers do place products 
on the market despite not making them available directly to consumers. The 
assessment of the District Court that enforcement action can only be taken against 
the retail outlet if tobacco products or related products do not meet the relevant 
requirements is also inconsistent with Article 20(9) of Directive 2014/40. Under 
this provision, economic operators have an obligation to withdraw or recall a 
product in certain circumstances. This means that, in addition to a retail outlet, 
other economic operators may also place products on the market and/or remove 
them from the market. 
7 The conclusion of the Minister is that the respondents purchased the refill 
containers from a manufacturer or importer within the meaning of Directive 
2014/40 in the European Union and that they introduced these refill containers 
STAATSSECRETARIS JEUGD, PREVENTIE EN SPORT 
 
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into the Netherlands and (further) marketed them there. This means that, as 
importers within the meaning of Article 1 of the Law, the respondents are a link in 
the distribution chain. They therefore made the refill containers available to 
consumers and thus placed them on the market. 
8 The respondents dispute the claim that all links in the distribution chain from 
manufacturer to provider to the consumer are responsible for the correct indication 
of nicotine content on unit packets. They contend that the concept of ‘placing on 
the market’ as defined in Directive 2014/40 and the Law is precisely and carefully 
worded and has legal implications for the identification of the economic operators 
responsible. For the concept of ‘placing on the market’ as referred to in Directive 
2014/40 and the Law and, more specifically, Article 3(1) of the Law, the (EU) 
legislature wished to place the responsibility on those who actually make the 
products available to consumers. Article 3(1) of the Law must be interpreted 
strictly and precisely in the light of legal certainty and legality. 
9 In support of their position, the respondents also refer to the purpose of Directive 
2014/40 cited above. Placing the emphasis on those who actually provide those 
products to consumers is in line with that goal. Specifically, the retail outlet can 
stipulate when purchasing the products that the products meet the relevant 
requirements. Furthermore, retail outlets in particular are best placed to meet the 
requirements of Directive 2014/40 because they actually provide the products to 
consumers. 
10 Contrary to the Minister’s argument, according to the respondents, the term in de 
handel brengen (placing on the market) in the definitions of ‘manufacturer’ within 
the meaning of Directive 2014/40 and the Law is to be interpreted in line with 
everyday language. This only involves placing products on the market and not 
(usually) making them available to consumers. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
Concept of ‘placing on the market’ 
11 First, the referring court asks the Court to clarify the concept of ‘placing on the 
market’. 
12 In a case similar to the present cases, on 17 November 2023, the Austrian 
Verwaltungsgerichtshof (Supreme Administrative Court) submitted a request to 
the Court for a preliminary ruling on the interpretation of the term ‘placing on the 
market’ and, in particular, whether it also covered the supplying of tobacco 
products by a wholesaler to a retail outlet or only sales by a retail outlet to 
consumers. 
13 It appears from the summary of the Austrian court’s request (‘summary in Case 
C-717/23’) that the Austrian legislature, like the Netherlands legislature, simply 
adopted the definition of the term ‘placing on the market’ from Directive 2014/40. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-665/24 
 
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Like the Minister, the Austrian authorities also take the view that all market 
participants in the distribution chain are responsible for compliance with the 
requirements of Directive 2014/40, as, otherwise, effective market surveillance in 
order to achieve and maintain a high level of human health protection would not 
be possible. 
14 The referring court notes that point 40 of Article 2 of Directive 2014/40, in the 
Dutch-language version, refers to the making available of products ‘aan 
consumenten’ (‘to consumers’). In justifying its request, the Austrian Supreme 
Administrative Court noted that, in the German-language version, point 40 of 
Article 2 of Directive 2014/40 does not refer to the making available of tobacco 
products ‘to’ but ‘für Verbraucher’ (literally: ‘for consumers’). This, according to 
the Austrian Supreme Administrative Court, does not exclude an interpretation 
whereby the mere provision of the product to a retail outlet – and not only 
provision directly to consumers – is covered by the concept of ‘placing on the 
market’. 
15 The respondents’ argument that the EU legislature precisely and carefully 
formulated the concept of ‘placing on the market’ and that this has legal 
implications for the identification of the economic operators responsible is 
therefore irrelevant because of the difference in the two language versions. 
16 The Austrian Supreme Administrative Court further notes that the term ‘placing 
on the market’, described in general terms in point 40 of Article 2, is used in 
different contexts in Directive 2014/40. As indicated in paragraph 6, the Minister 
also points to the context of Directive 2014/40 and, more specifically, to the 
definition of the term ‘manufacturer’, and to the obligations imposed on 
manufacturers and importers by Article 20(2) of Directive 2014/40. 
17 According to the Austrian Supreme Administrative Court, such a systematic 
reading of Directive 2014/40 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 Directive 2014/40 and 
depending on the specific case, cover various economic operators involved in the 
tobacco product trade. The Minister does not favour such a – more nuanced – 
interpretation. As noted above, in his view, all economic operators in the 
distribution chain must comply with the provisions of Directive 2014/40, because 
even the Netherlands legislature has not determined which specific requirements 
arising from Directive 2014/40 concern all or only some economic operators. 
According to the referring court, the opinion of the Minister does not sit well with 
the examples put forward by the Austrian Supreme Administrative Court (in 
paragraph 14 of the summary in Case C-717/23). 
18 At issue in the present cases is the obligation to indicate on the unit packets the 
nicotine content of the refill containers and, more specifically, the obligation to 
indicate the correct nicotine content. Like the obligation at issue in the case before 
the Austrian Supreme Administrative Court, it could also be said in the present 
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cases that the manufacturer can stipulate that the (correct) nicotine content of the 
refill containers be stated on the unit packet. Furthermore, importers (within the 
meaning of Directive 2014/40), wholesalers and retail outlets may also decide 
whether to pass on in the distribution chain or sell to consumers unit packets on 
which no nicotine content, or at least not the correct nicotine content, is indicated. 
19 When it comes to indicating the – correct – nicotine content, it seems that 
manufacturers and importers (within the meaning of Directive 2014/40) should in 
principle be able to determine that. This includes notifying the competent 
authority under Article 20(2) of Directive 2014/40 of any refill containers that 
they intend to place on the market. This notification should include a list of all 
ingredients contained in, and emissions resulting from the use of, the product, by 
brand name and type, including quantities thereof. Furthermore, that notification 
should include a declaration that the manufacturer and importer bear full 
responsibility for the quality and safety of the product, when placed on the market 
and used under normal or reasonably foreseeable conditions. 
20 For wholesalers and retail outlets, it is somewhat trickier to determine whether the 
unit packet indicates the correct nicotine content and whether they may pass on 
those unit packets in the distribution chain for tobacco products or sell them to 
consumers. In a ruling of 9 August 2022, the referring court previously held that 
the placing on the market of a refill container whose unit packet indicated an 
incorrect nicotine content could not be imputed to the retail outlet. The referring 
court considered it significant in that regard that the retail outlet in question did 
not need to be aware that the nicotine content of the product indicated on the unit 
packet was incorrect. The retail outlet was neither a manufacturer nor an importer 
(within the meaning of Directive 2014/40) of the related product. In this case, it 
was the manufacturer who made the notification under Article 20(2) of Directive 
2014/40. The retail outlet then made the product available to consumers. The 
referring court did not follow the Minister in his view that the retail outlet should 
have verified whether the nicotine content indicated on the unit packet (and in the 
notification) was correct, as this can only be done by taking samples of the 
product, thus preventing the product from being sold. Referring to that judgment, 
the respondents argue that – if they placed the refill containers on the market at 
all – they cannot be blamed for that either. That is the subject matter of the second 
question referred. 
21 Given the goal of Directive 2014/40, a high level of public health protection, the 
manufacture, distribution and consumption of tobacco and related products must 
be regulated. Among other things, this requires that the labelling and packaging of 
tobacco and related products contain sufficient and appropriate information on 
safe use and appropriate health warnings. According to the referring court, it is not 
obvious that the prohibition on placing on the market unit packets of refill 
containers that do not include an indication of the (correct) nicotine content 
concerns only the retail outlet. 
Culpability in respect of the infringement 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-665/24 
 
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22 According to the referring court, if it is established that the respondents placed the 
refill containers on the market within the meaning of Directive 2014/40, the 
second issue to be considered is whether they infringed Article 3:10, first 
paragraph, of the Regulation and, consequently, Article 3(1) of the Law by 
placing on the market refill containers whose unit package includes an incorrect 
indication of their nicotine content. 
23 Because the Minister imposed penalties on the respondents in respect of that 
infringement, the presumption of innocence set out in Article 48(1) of the Charter 
applies. The presumption of innocence also includes the fault principle, nulla 
poena sine culpa, which requires guilt, that is to say, liability for the breach (see 
the Opinion of Advocate General Kokott in Case C-129/16, point [4]4). 
24 According to the Minister, the respondents, as importers within the meaning of the 
Law, have a responsibility of their own to ensure that the refill containers they 
place on the market meet the relevant requirements. In contrast, the respondents 
argue that they are entitled to rely on the nicotine content specified in the 
notification provided by the manufacturer and importer (within the meaning of 
Directive 2014/40) as referred to in Article 20(2) of the directive. In doing so, they 
rely on the aforementioned ruling of 9 August 2022. 
25 According to the referring court, it is not evident, on the one hand, that economic 
operators might be entitled simply to rely on the accuracy of the information 
contained in that notification. Indeed, it follows from recital 36 of Directive 
2014/40 that that notification allows Member States to perform their surveillance 
and control tasks. However, Directive 2014/40 also aims to facilitate the smooth 
functioning of the internal market. In that regard, it is important that, as the 
referring court also essentially considered in the ruling of 9 August 2022, 
verification of the accuracy of the nicotine content by the economic operator 
purchasing the products from a manufacturer or importer within the meaning of 
Directive 2014/40 may be going too far. 
26 It should be noted, however, that, unlike the case that led to the ruling of 9 August 
2022, the present case does not involve a retail outlet. A wholesaler or an importer 
(within the meaning of the Law) having obtained the refill containers from a 
manufacturer or importer (within the meaning of Directive 2014/40) and passing 
on those refill containers in the distribution chain may well be expected, as the 
Minister also argues, to take those samples.