Philip Morris Brands SARL and Others v Secretary of State for Health.
Date: 2016-05-04
31


In that regard, it should be recalled that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (judgment in Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24).
32


It follows that questions concerning EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the facts of the main action or its purpose, 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 (judgment in Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25).
33


As regards, first, the genuine nature of the dispute in the main proceedings, it should be noted that the claims for judicial review of the ‘intention and/or obligation’ of the United Kingdom Government to implement Directive 2014/40, which the claimants in the main proceedings have brought before the referring court, have been held admissible by the latter, even though, when those claims were brought, the period prescribed for implementation of the directive had not yet expired and no national implementation measures had been adopted. There is, moreover, disagreement between the claimants in the main proceedings and the Secretary of State for Health as to whether or not the abovementioned claims are well founded. Given that the referring court has been asked to resolve that disagreement, it is not obvious that the dispute in the main proceedings is not genuine (see, by analogy, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraphs 36 and 38).
35


Moreover, 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. That condition is fulfilled in the case of the main proceedings, as is apparent from paragraph 33 of this judgment (see, by analogy, judgments in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 40, and Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 29).
47


With regard, thirdly, to the admissibility of Question 7, which concerns the validity of Articles 7, 8(3), 9(3), 10(1)(g), 13 and 14 of Directive 2014/40, it should be borne in mind that 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 (see to that effect, inter alia, judgments in Bertini and Others,98/85, 162/85 and 258/85, EU:C:1986:246, paragraph 6; ABNA and Others, C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741, paragraph 46; and IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 31).
48


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 (see to that effect, inter alia, judgment in Greenpeace France and Others, C‑6/99, EU:C:2000:148, paragraph 55, and order in Adiamix, C‑368/12, EU:C:2013:257, paragraph 22). Such a requirement also arises under Article 94(c) of the Rules of Procedure of the Court.
49


Furthermore, according to settled case-law of the Court, 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 of the European Union. It is for the Court to ensure that that opportunity is safeguarded, given that, under Article 23, only the orders for reference are notified to the interested parties, accompanied by a translation in the official language of each Member State, but excluding any case file that may be sent to the Court by the national court (see, inter alia, judgments in Holdijk and Others, 141/81 to 143/81, EU:C:1982:122, paragraph 6; Lehtonen and Castors Braine, C‑176/96, EU:C:2000:201, paragraph 23; and order in Adiamix, C‑368/12, EU:C:2013:257, paragraph 24).
50


It follows from the foregoing, 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.
58


In that regard, while a mere finding of disparities between national rules is not sufficient to justify having recourse to Article 114 TFEU, it is otherwise where there are differences between the laws, regulations or administrative provisions of the Member States which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market (see, to that effect, judgments in Germany v Parliament and Council, C‑376/98, EU:C:2000:544, paragraphs 84 and 95; British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraphs 59 and 60; Arnold André, C‑434/02, EU:C:2004:800, paragraph 30; Swedish Match, C‑210/03, EU:C:2004:802, paragraph 29; Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 37; and Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 32).
59


It is also settled case-law that, although recourse to Article 114 TFEU as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade as a result of divergences in national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them (judgments in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 61; Arnold André, C‑434/02, EU:C:2004:800, paragraph 31; Swedish Match, C‑210/03, EU:C:2004:802, paragraph 30; Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 38; and Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 33).
60


The Court has also held that, provided that the conditions for recourse to Article 114 TFEU as a legal basis are fulfilled, the EU legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made (judgments in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 62; Arnold André, C‑434/02, EU:C:2004:800, paragraph 32; Swedish Match, C‑210/03, EU:C:2004:802, paragraph 31; and Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 39).
61


The point should also be made that the first subparagraph of Article 168(1) TFEU provides that a high level of human health protection is to be ensured in the definition and implementation of all EU policies and activities, and that Article 114(3) TFEU explicitly requires that, in achieving harmonisation, a high level of protection of human health should be guaranteed (judgments in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 62; Arnold André, C‑434/02, EU:C:2004:800, paragraph 33; Swedish Match, C‑210/03, EU:C:2004:802, paragraph 32; and Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 40).
62


It follows from the foregoing that 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 (judgments in Arnold André, C‑434/02, EU:C:2004:800, paragraph 34; Swedish Match, C‑210/03, EU:C:2004:802, paragraph 33; and Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 41).
63


It is also to be observed that, 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 (judgments in Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 42, and United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 102). It was thus open to the EU legislature, in the exercise of that discretion, to proceed towards harmonisation only in stages and to require only the gradual abolition of unilateral measures adopted by the Member States (judgment in Rewe-Zentral, 37/83, EU:C:1984:89, paragraph 20).
64


Depending on the circumstances, the measures referred to in Article 114(1) TFEU 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 (judgments in Arnold André, C‑434/02, EU:C:2004:800, paragraph 35; Swedish Match, C‑210/03, EU:C:2004:802, paragraph 34; and Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 43).
70


The Court has consistently held that, if the wording of secondary law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the Treaty rather than to the interpretation which leads to its being incompatible with the Treaty (see, inter alia, judgment in Ordre des barreaux francophones et germanophone and Others, C‑305/05, EU:C:2007:383, paragraph 28).
79


Admittedly, 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.
80


However, that is the inevitable consequence of the method of harmonisation chosen by the EU legislature in the present case. As has been recalled in paragraph 63 of this judgment, 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.
82


In contrast to the directive at issue in the case that gave rise to the judgment in Germany v Parliament and Council (C‑376/98, EU:C:2000:544), paragraph 1 of Article 24 of Directive 2014/40 read in conjunction with paragraph 2 thereof, as it has been interpreted in paragraph 73 of this judgment, forbids the Member States from preventing, on grounds relating to the aspects of packaging harmonised by that directive, the import, sale or consumption of tobacco products which comply with the requirements laid down by the directive. Those provisions thus 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, by analogy, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 74).
90


It follows that Article 24(3) of Directive 2014/40 concerns an aspect which is not covered by the harmonisation measures in the directive 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.
100


Given that 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 designation, composition or labelling, are in themselves liable, in the absence of harmonisation at EU level, to constitute obstacles to the free movement of goods (see, to that effect, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 64).
114


It follows that tobacco products containing a characterising flavour, whether that is menthol or another flavouring, have certain similar, objective characteristics and similar effects as regards initiating tobacco consumption and sustaining tobacco use.
131


The Court has already had occasion to point out that 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 (see, to that effect, judgments in Germany v Parliament and Council, C‑376/98, EU:C:2000:544, paragraph 100, and British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 82).
134


It should be recalled in this regard that, in accordance with the case-law cited in paragraph 63 of this judgment, Article 114 TFEU confers a discretion on the EU legislature, 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.
141


Likewise, the prohibitions of any element or feature (i) suggesting that a particular tobacco product is less harmful than others (Article 13(1)(b) of Directive 2014/40), or (ii) referring to taste, smell, any flavourings or other additive (Article 13(1)(c) of the directive), or (iii) suggesting that a certain tobacco product has improved biodegradability or other environmental advantages (Article 13(1)(e) of the directive), also apply irrespective of whether the claims in question are factually accurate.
147


Article 11 of the Charter affirms the freedom of expression and information. That freedom is also protected under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which applies, in particular, as is clear from the case-law of the European Court of Human Rights, to the dissemination by a business of commercial information, including in the form of advertising. Given that the freedom of expression and information laid down in Article 11 of the Charter has — as is clear from Article 52(3) thereof and the Explanations Relating to the Charter as regards Article 11 — the same meaning and scope as the freedom guaranteed by the Convention, it must be held that that freedom covers the use by a business, on the packaging and labelling of tobacco products, of indications such as those covered by Article 13(1) of Directive 2014/40 (judgment in Neptune Distribution, C‑157/14, EU:C:2015:823, paragraphs 64 and 65).
151


Secondly, 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 (see, by analogy, judgments in Deutsches Weintor, C‑544/10, EU:C:2012:526, paragraph 57, and Neptune Distribution, C‑157/14, EU:C:2015:823, paragraph 71).
154


In those circumstances, the determination of the validity of Article 13(1) of Directive 2014/40 must be carried out in accordance with the need to reconcile the requirements of the protection of those various fundamental rights and legitimate general interest objectives, protected by the EU legal order, and striking a fair balance between them (see, to that effect, judgment in Neptune Distribution, C‑157/14, EU:C:2015:823, paragraph 75).
160


Nor can the Court accept the argument that the objective pursued could be achieved by other, less restrictive measures, such as regulating the use of the elements and features referred to in Article 13 of Directive 2014/40, instead of prohibiting them, or adding certain supplementary health warnings. Such measures 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 (see, to that effect, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 140). 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.
165


According to settled case-law, that principle requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is necessary in order to achieve those objectives; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to that effect, judgments in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 122; ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 86; and Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs 67 and 91).
166


With regard to judicial review of the conditions referred to in the previous paragraph of this judgment, the EU legislature must be allowed broad discretion in an area such as that involved in the main proceedings, which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue (see, to that effect, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 123).
171


It should be recalled in this regard that the objective of Directive 2014/40 is, according to Article 1 thereof, twofold in that it seeks 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.
176


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.
185


As regards, in the third place, the allegedly disproportionate effects of the prohibition on the use of menthol as a characterising flavour because of the negative economic and social consequences that such a prohibition entails, it should be borne in mind that even though, as in the present case, the EU legislature has a broad legislative power, it must base its choice on objective criteria and examine whether objectives pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators (see, to that effect, judgment in Luxembourg v Parliament and Council, C‑176/09, EU:C:2011:290, paragraph 63 and the case-law cited).
190


Those elements show that 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 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.
215


The principle of subsidiarity is set out in Article 5(3) TEU, under which the European Union, in areas which do not fall within its exclusive competence, is to act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved at EU level. Furthermore, Article 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the EU Treaty and to the FEU Treaty, lays down guidelines for the purpose of determining whether those conditions are met (judgment in Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 44).
219


Since the present case concerns an area — the improvement of the functioning of the internal market — which is not among those in respect of which the European Union has exclusive competence, it must be determined whether the objective of Directive 2014/40 could be better achieved at EU level (see, to that effect, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraphs 179 and 180).
220


In this regard, as has been mentioned in paragraph 143 of this judgment, Directive 2014/40 has two objectives in that it seeks to facilitate the smooth functioning of the internal market for tobacco and related products, while ensuring a high level of protection of human health, especially for young people.
221


Even if the second of those objectives 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.
222


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, by analogy, judgment in Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 78, and Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 48).
225


As regards, in the second place, compliance with formal requirements and, in particular, the statement of reasons for Directive 2014/40 in the light of the principle of subsidiarity, it should be borne in mind that, according to the Court’s case-law, observance of the obligation to state reasons must be evaluated not only by reference to the wording of the contested act, but also by reference to its context and the circumstances of the individual case (see, to that effect, judgment in Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 61).