Case C‑547/14

Philip Morris Brands SARL and Others

v

Secretary of State for Health

(Request for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court))

‛Reference for a preliminary ruling — Approximation of laws — Directive 2014/40/EU — Articles 7, 18 and 24(2) and (3) — Articles 8(3), 9(3), 10(1)(a), (c) and (g), 13 and 14 — Manufacture, presentation and sale of tobacco products — Validity — Legal basis — Article 114 TFEU — Principle of proportionality — Principle of subsidiarity — Fundamental rights of the European Union — Freedom of expression — Charter of Fundamental Rights of the European Union — Article 11’

Summary — Judgment of the Court (Second Chamber), 4 May 2016

Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Measures that may be taken to regulate ingredients — Prohibition on the placing on the market of tobacco products with a characterising flavour — Breach of the principle of subsidiarity — Absence

Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Measures that may be taken to regulate ingredients — Prohibition on the placing on the market of tobacco products with a characterising flavour — Breach of the principle of proportionality — Absence

Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Labelling and packaging — Obligation to make adjustments on the basis of the particular linguistic and regulatory features of the Member State in which the products are marketed — Compatibility with Article 114 TFEU

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Request for interpretation of an EU act of general application not having been the subject of implementing measures under national law — Admissibility of the action before the national court — Included

See the text of the decision. (see paras 31, 32)

It cannot validly be argued that an action before a national court for judicial review of the intention and/or obligation of a Member State to implement a directive, in which a request for a preliminary ruling concerning the validity of that directive has been made, is a means of circumventing the system of remedies established by the FEU Treaty. The opportunity open to individuals to plead the invalidity of an EU act of general application before national courts is not conditional upon that act actually having been the subject of implementing measures adopted pursuant to national law. In that respect, it is sufficient if the national court is called upon to hear a genuine dispute in which the question of the validity of such an act is raised indirectly. (see paras 34, 35)

It follows from the spirit of cooperation which must prevail in the operation of the preliminary reference procedure that it is essential that the national court sets out in its order for reference the precise reasons why it considers a reply to its questions concerning the interpretation or validity of certain provisions of EU law to be necessary to enable it to give judgment. It is therefore important that the national court should set out, in particular, the precise reasons which led it to question the validity of certain provisions of EU law and set out the grounds of invalidity which, consequently, appear to it capable of being upheld. Such a requirement also arises under Article 94(c) of the Rules of Procedure of the Court. Furthermore, the information provided in orders for reference not only enables the Court to give useful answers but also serves to ensure that the governments of the Member States and other interested persons are given an opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice. It follows, first, that in a reference for a preliminary ruling, the Court will examine the validity of an EU act or certain provisions thereof in the light of the grounds of invalidity set out in the order for reference. Secondly, if there is no mention of the precise reasons which led the referring court to question the validity of that act or of those provisions, the questions relating to the validity thereof will be inadmissible. (see paras 47-50)

When there are obstacles to trade, or it is likely that such obstacles will emerge in the future, because the Member States have taken, or are about to take, divergent measures with respect to a product or a class of products such as to bring about different levels of protection and thereby prevent the product or products concerned from moving freely within the European Union, Article 114 TFEU authorises the EU legislature to intervene by adopting appropriate measures, in compliance with Article 114(3) TFEU and with the legal principles mentioned in the FEU Treaty or identified in the case-law, in particular the principle of proportionality. In that regard, by using the words ‘measures for the approximation’ in Article 114 TFEU, the authors of the Treaty intended to confer on the EU legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features. Depending on the circumstances, those measures may consist in requiring all the Member States to authorise the marketing of the product or products concerned, subjecting such an obligation of authorisation to certain conditions, or even provisionally or definitively prohibiting the marketing of a product or products. (see paras 62-64)

See the text of the decision. (see para. 70)

Article 24(2) of Directive 2014/40 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 must be interpreted as permitting Member States to maintain or introduce further requirements in relation to aspects of the packaging of tobacco products which are not harmonised by that directive. In that regard, it is true that, by permitting Member States to maintain or introduce further requirements relating to aspects of packaging that have not been harmonised by Directive 2014/40, Article 24(2) does not guarantee that products whose packaging complies with the requirements of the directive may move freely on the internal market. However, that is the inevitable consequence of the method of harmonisation chosen by the EU legislature. The EU legislature has a discretion, in particular with regard to the possibility of proceeding towards harmonisation only in stages and requiring only the gradual abolition of unilateral measures adopted by the Member States. A measure for partial harmonisation in relation to the labelling and packaging of tobacco products, such as the harmonisation achieved by Directive 2014/40, undeniably offers advantages for the functioning of the internal market, since, whilst it does not eliminate all obstacles to trade, it does eliminate some. Accordingly, paragraphs 1 and 2 of Article 24 of Directive 2014/40 play a part in achieving the objective of improving the conditions for the functioning of the internal market and are therefore compatible with Article 114 TFEU. (see paras 79-82, 84, operative part 1)

It is true that by permitting the Member States to prohibit a certain category of tobacco or related products even though they comply with the requirements of Directive 2014/40 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, Article 24(3) of the directive is capable of impeding the free movement of the products. However, that provision concerns an aspect which is not covered by the harmonisation measures in Directive 2014/40 and which is not, therefore, to be subject to the rules laid down in Article 114(4) to (10) TFEU relating to the introduction of national measures derogating from a harmonisation measure. Moreover, it cannot validly be argued that there is inconsistency between Article 24(3) of Directive 2014/40 and Article 7 thereof, which is said to result from the fact that, on the one hand, the objective of the prohibition on characterising flavours laid down in Article 7 is to abolish disparities between the rules of the Member States, while, on the other, Article 24(3) facilitates the emergence of such disparities. Those provisions, without being in any way contradictory, are in fact complementary. In that regard, in prohibiting tobacco products with a characterising flavour, Article 7 of the directive seeks to eliminate disparities existing in that respect between the rules of the Member States, in order, in particular, to ensure the free movement of tobacco products in general. Under Article 24(1) of Directive 2014/40, those products, where they comply with, inter alia, Article 7, enjoy freedom of movement on the internal market as long as the category of tobacco products to which they belong is not — as follows from Article 24(3) of the directive — prohibited, as such, in the Member State in which they are marketed. (see paras 87, 90, 93, 94)

The validity of the provisions of Chapter II of Title II of Directive 2014/40 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 cannot be challenged by arguing that those provisions do not contribute to the elimination of obstacles to the free movement of tobacco products, since some of the provisions require, in any event, that the manufacturers produce different packaging for each Member State. Whilst it is true that some of those provisions require that certain elements of the labelling and packaging of tobacco products are adapted to take account of, amongst other things, the official language(s) or the tax legislation of the Member State of marketing, the fact remains that the directive harmonises other elements of the labelling and packaging of those products, such as the shape of the unit packets, the minimum number of cigarettes per unit packet and the size and combined nature of health warnings. Those measures thus contribute to the removal of obstacles to trade, since they allow the undertakings concerned to reduce costs through economies of scale. (see paras 102, 103)

The prohibition on the placing on the market of tobacco products with a characterising flavour, whether that is menthol or another flavouring, which is laid down in Article 7 of Directive 2014/40 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, could properly be adopted on the basis of Article 114 TFEU. First, it is apparent from recital 15 of Directive 2014/40 that there were, when the directive was adopted, significant discrepancies between the regulatory systems of the Member States, given that some of them had established different lists of permitted or prohibited flavourings, whilst others had not adopted any specific rules on the matter. Similarly, it seems likely that, in the absence of any measures at EU level, disparate sets of rules applying to tobacco products containing a characterising flavour, including menthol, would have been implemented at national level. Secondly, since the market for tobacco products is one in which trade between Member States represents a relatively large part, national rules laying down the requirements to be met by those products, in particular requirements relating to their composition, are in themselves liable, in the absence of harmonisation at EU level, to constitute obstacles to the free movement of goods. Accordingly, removing divergences between the national rules concerning the composition of tobacco products, or preventing those rules from developing in divergent ways, including by means of an EU-wide prohibition of certain additives, is intended to facilitate the smooth functioning of the internal market for the products concerned. (see paras 117, 118, 123, 125)

Article 18 of Directive 2014/40 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, which provides, on the one hand, that Member States may prohibit cross-border distance sales of tobacco products to consumers and, on the other, imposes a series of common rules on Member States which permit that method of sale, could properly be adopted on the basis of Article 114 TFEU. That provision seeks to ensure that the rules on conformity laid down by Directive 2014/40 are not circumvented, whilst taking as a basis a high level of human health protection, especially for young people. An EU measure adopted on the basis of Article 114 TFEU may incorporate provisions whose purpose is to ensure that requirements aimed at improving the conditions for the functioning of the internal market are not circumvented. Furthermore, Article 114 TFEU confers a discretion on the EU legislature, in particular with regard to the possibility of proceeding towards harmonisation in stages and requiring only the gradual abolition of unilateral measures adopted by the Member States. Accordingly, within the bounds of that discretion, the legislature could properly harmonise certain aspects of cross-border sales of tobacco products, whilst leaving other aspects of such sales to be determined by Member States. (see paras 128, 130, 131, 134, 135)

Article 13(1) of Directive 2014/40 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 must be interpreted as prohibiting the display, on the labelling of unit packets and on the outside packaging, as well as on the tobacco product itself, of any information covered by that provision, even if the information concerned is factually accurate. As is stated in recital 27 of Directive 2014/40, certain words or expressions, such as ‘low-tar’, ‘light’, ‘ultra-light’, ‘natural’, ‘organic’, ‘without additives’, ‘without flavours’ or ‘slim’, and other elements or features could mislead consumers, in particular young people, by suggesting that the products concerned are less harmful or that they have beneficial effects. That interpretation is consistent with the objective pursued by Directive 2014/40, which is, in accordance with Article 1 thereof, to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people. A high level of protection of that kind requires that consumers of tobacco products, who are a particularly vulnerable class of consumers because of the addictive effects of nicotine, should not be encouraged to consume those products by means of, albeit factually accurate, information, which they may interpret as meaning that the risks associated with their habits are reduced or that the products have certain benefits. (see paras 142-145, operative part 2)

See the text of the decision. (see para. 147)

The prohibition on including on the labelling of unit packets and on outside packaging, as well as on the tobacco product itself, the elements and features referred to in Article 13(1) of Directive 2014/40 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 does not infringe either Article 11 of the Charter of Fundamental Rights of the European Union or the principle of proportionality. It is true that that prohibition constitutes an interference with a business’s freedom of expression and information, as guaranteed by Article 11 of the Charter. However, the essence of a business’s freedom of expression and information is not affected by Article 13(1) of Directive 2014/40 inasmuch as that provision, far from prohibiting the communication of all information about the product, merely controls, in a very clearly defined area, the labelling of those products by prohibiting only the inclusion of certain elements and features. In addition, the interference with the freedom of expression and information that has been found to exist meets an objective of general interest recognised by the European Union, namely, the protection of health. Given that it is undisputed that tobacco consumption and exposure to tobacco smoke are causes of death, disease and disability, the prohibition laid down in Article 13(1) of Directive 2014/40 contributes to the achievement of that objective in that it is intended to prevent the promotion of tobacco products and incitements to use them. Furthermore, the prohibition laid down in Article 13(1) of Directive 2014/40, first, is such as to protect consumers against the risks associated with tobacco use and, second, does not go beyond what is necessary in order to achieve the objective pursued. In the first place, consumer protection would not be adequately ensured by mandatory health warnings mentioning the risks associated with tobacco use, given that awareness of those risks may, on the contrary, be diminished by information that might suggest that the product concerned is less harmful or is beneficial in some respects. In the second place, other, less restrictive measures, such as regulating the use of the elements and features referred to in Article 13 of the directive, would not be as effective for ensuring the protection of consumers’ health, since the elements and features referred to in Article 13 are, by their very nature, likely to encourage smoking. It cannot be accepted that those elements and features may be included for the purpose of giving consumers clear and precise information, inasmuch as they are intended more to exploit the vulnerability of consumers of tobacco products who, because of their nicotine dependence, are particularly receptive to any element suggesting there may be some kind of benefit linked to tobacco consumption, in order to vindicate or reduce the risks associated with their habits. (see paras 148, 151, 152, 158-160, 162)

See the text of the decision. (see paras 165, 166, 185)

The prohibition on the placing on the market of tobacco products with a characterising flavour, such as menthol, which is laid down in Article 7 of Directive 2014/40 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, does not infringe the principle of proportionality. Indeed, that prohibition is capable of facilitating the smooth functioning of the internal market for tobacco and related products and is also appropriate for ensuring a high level of human health protection, especially for young people. Certain flavourings are particularly attractive to young people and facilitate initiation of tobacco consumption. In that regard, an argument that young people are not attracted to menthol and that the use thereof does not facilitate that initiation cannot be accepted, since the appropriateness of the prohibition in question for the purpose of achieving the object of human health protection cannot be called into question solely in respect of a particular flavouring. Furthermore, Directive 2014/40 is aimed at ensuring a high level of health protection for consumers as a whole and consequently its ability to achieve that aim cannot be assessed solely in relation to a single category of consumers. Moreover, it is clear that the EU legislature made sure that the negative economic and social consequences of the prohibition on the placing on the market of tobacco products with a characterising flavour were limited. The EU legislature weighed up, on the one hand, the economic consequences of that prohibition and, on the other, the requirement to ensure, in accordance with the second sentence of Article 35 of the Charter of Fundamental Rights of the European Union and Articles 9 TFEU, 114(3) TFEU and 168(1) TFEU, a high level of human health protection with regard to a product which is characterised by properties that are carcinogenic, mutagenic and toxic to reproduction. The impact of the prohibition laid down in Article 7 of Directive 2014/40 thus does not appear manifestly disproportionate. (see paras 172-174, 176, 187, 190)

It cannot be accepted that the requirements laid down in Articles 8(3), 9(3), 10(1)(g) and 14 of Directive 2014/40 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 are manifestly inappropriate or manifestly go beyond what is necessary to attain the objective of improving the conditions for the functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people. First, those provisions, which include various rules concerning the labelling and packaging of tobacco products and which form part of Chapter II of Title II of Directive 2014/40, contribute to improving the conditions for the functioning of the internal market for tobacco products by removing disparities on this point between the rules of the Member States. Second, those requirements help to achieve the objective of ensuring a high level of human health protection. Innovative, novel or unusual shapes may help to maintain or enhance the attraction of the product and encourage its use. Similarly, certain packet shapes may obstruct the visibility of health warnings and, as a consequence, reduce their efficacy, as is stated in recitals 25 and 28 of Directive 2014/40. In that regard, a less restrictive requirement that health warnings must be fully visible and not be distorted by packet shapes would not be aimed at removing differences between the Member States’ rules on the labelling and packaging of tobacco products and would therefore not be appropriate for the purpose of achieving the objective of improving the functioning of the internal market. Furthermore, although those requirements may, by their very nature, to some extent increase the similarity between tobacco products, the fact remains that they concern only certain aspects of the labelling and packaging of those products and therefore still allow for adequate opportunities for product differentiation. (see paras 192, 193, 195, 197-200)

It does not appear that, in adopting Article 10(1)(a) and (c) of Directive 2014/40 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, the EU legislature manifestly went beyond the limits of what is appropriate and necessary to attain the objective of improving the conditions for the functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people. Article 10(1)(a) and (c) of Directive 2014/40 provides, in substance, that each unit packet and the outside packaging must carry combined health warnings taking the form of one of the messages listed in Annex I to the directive and a corresponding colour photograph as set out in Annex II thereto, which must cover 65% of the external front and back surface of each unit packet. In that regard, the figure of 65% does not appear manifestly inappropriate for achieving the objective sought, since larger health warnings with pictures are more likely to be noticed, better communicate health risks, provoke a greater emotional response and increase the motivation of tobacco users to quit and to decrease their tobacco consumption. Such warnings are also more likely to retain their effectiveness over time and are particularly effective in communicating health effects to low-literacy populations, children and young people. As regards the size of the area which Article 10(1)(a) and (c) of Directive 2014/40 reserves for combined health warnings, the EU legislature cannot be accused of having acted arbitrarily in selecting a figure of 65% for the area reserved for such warnings since that selection is based on criteria deriving from the recommendations of the World Health Organisation Framework Convention on Tobacco Control and, in making it, the EU legislature acted within the bounds of its broad discretion. Concerning the necessity of the measure in question and its impact on the ability of manufacturers to communicate information about the product concerned to consumers, it is found, first, that the area reserved for those warnings allows for a sufficient space for that type of information on the unit packets and, secondly, that restrictions thereby imposed must be weighed up against the requirement to ensure a high level of human health protection in an area characterised by the toxicity of the product concerned and its addictive effects. (see paras 202, 204-206, 208-211)

See the text of the decision. (see paras 215, 218)

The prohibition on the placing on the market of tobacco products with a characterising flavour, such as menthol, which is laid down in Article 7 of Directive 2014/40 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, does not infringe the principle of subsidiarity. Even if the second of the two objectives pursued by Directive 2014/40, namely ensuring a high level of human health protection, might be better achieved at the level of Member States, the fact remains that pursuing it at that level would be liable to entrench, if not create, situations in which some Member States permit the placing on the market of tobacco products containing certain characterising flavours, whilst others prohibit it, thus running completely counter to the first objective of Directive 2014/40, namely the improvement of the functioning of the internal market for tobacco and related products. The interdependence of the two objectives pursued by the directive means that the EU legislature could legitimately take the view that it had to establish a set of rules for the placing on the EU market of tobacco products with characterising flavours and that, because of that interdependence, those two objectives could best be achieved at EU level. (see paras 220-222)