Case C‑358/14

Republic of Poland

v

European Parliament

and

Council of the European Union

‛Action for annulment — Approximation of laws — Directive 2014/40/EU — Article 2(25), Article 6(2)(b), Article 7(1) to (5), the first sentence of Article 7(7), Article 7(12) to (14) and Article 13(1)(c) — Validity — Manufacture, presentation and sale of tobacco products — Prohibition on the placing on the market of tobacco products with characterising flavours — Tobacco products containing menthol — Legal basis — Article 114 TFEU — Principle of proportionality — Principle of subsidiarity’

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

Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case —Member State having participated in the legislative procedure — Invalid plea in law

Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Measures that may be introduced to regulate ingredients — Prohibition on the placing on the market of tobacco products with characterising flavours — Infringement of the principle of subsidiarity — None

Approximation of laws — Manufacture, presentation and sale of tobacco products— Directive 2014/40 — Measures that may be introduced to regulate ingredients —Prohibition on the placing on the market of tobacco products with characterising flavours — Whether compatible with Article 114 TFEU

Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Measures that may be introduced to regulate ingredients — Prohibition on the placing on the market of tobacco products with characterising flavours — Breach of the principle of proportionality — None

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, such measures for approximation 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 36-38)

The prohibition on the placing on the market of tobacco products with a characterising flavour, such as menthol, 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. That prohibition is appropriate for facilitating the smooth functioning of the internal market for tobacco and related products and is also appropriate for ensuring a high level of protection of human health, especially for young people. As it is, certain flavourings are particularly attractive to them and facilitate initiation of tobacco consumption. In that regard, since the EU legislature could properly make all characterising flavours subject to the same set of legal rules, because their objective characteristics are, in essence, similar to those of the other tobacco products with a characterising flavour, in that their flavour masks or reduces the tobacco smoke’s harshness, 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. In addition, it must be noted that the EU legislature made sure that the negative economic and social consequences of the prohibition on the use of menthol as a characterising flavour were limited. Indeed, 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 Article 114(3) 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. In that regard, the mere fact an EU legislative act is likely to affect one Member State more than others cannot be contrary to the principle of proportionality, as long as the conditions for applying that act are met. Directive 2014/40 has an impact in all Member States and requires that a balance between the different interests involved is ensured, taking account of the objectives of that directive. Therefore, the attempt to strike such a balance, taking into account not the particular situation of a single Member State, but that of all EU Member States, cannot be regarded as being contrary to the principle of proportionality. (see paras 50, 81, 82, 84, 99, 102, 103)

The prohibition on the placing on the market of tobacco products with a characterising flavour, whether that is menthol or another flavouring, 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 be properly 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 divergences 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 those relating to their composition, are, therefore, in themselves liable, in the absence of harmonisation at EU level, to constitute obstacles to the free movement of goods. Consequently, the elimination of the divergences between the national rules as regards the composition of tobacco products or the prevention of the development of divergences between them, including the prohibition, at EU level, of certain additives, seeks to facilitate the smooth functioning of the internal market in the products concerned. In addition, there is nothing to indicate that the EU legislature has failed to observe the discretion conferred on it by Article 114 TFEU as regards the method of approximation most appropriate for achieving the desired result, in introducing, in Article 7(2) to (5) of Directive 2014/40, mechanisms for determining which tobacco products contain a characterising flavour within the meaning of Article 2(25) of that directive. On the contrary, those dynamic mechanisms have advantages compared with the adoption of lists of permitted or prohibited flavourings, which are likely to be quickly rendered inoperative by the constant development of the commercial strategies of manufacturers or easily circumvented. (see paras 57, 58, 62, 64, 66, 68, 69)

See the text of the decision. (see paras 78, 79, 97)

See the text of the decision. (see paras 111, 114, 119)

The prohibition on the placing on the market of tobacco products with a characterising flavour, such as menthol, 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 of Directive 2014/40, namely, ensuring a high level of protection of human health, might be better attained 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 permitted 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 116-118)