Swedish Match AB v Secretary of State for Health.
Date: 2018-11-22
22


According to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraph 41).
24


In those judgments, the Court held that the particular situation of the tobacco products for oral use referred to in Article 2 of Directive 2001/37 permitted a difference in their treatment, and it could not validly be argued that there was a breach of the principle of non-discrimination. The Court held that those products, although they are not fundamentally different in their composition or indeed their intended use from tobacco products intended to be chewed, were not in the same situation as the latter products by reason of the fact that the tobacco products for oral use which were the subject of the prohibition laid down in Article 8a of Directive 89/622 and repeated in Article 8 of Directive 2001/37 were new to the markets of the Member States subject to that measure (judgments of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 71, and of 14 December 2004, Arnold André, C‑434/02, EU:C:2004:800, paragraph 69).
29


As regards the alleged breach of the principle of equal treatment because of the less favourable treatment of tobacco products for oral use as compared with electronic cigarettes, the Court has previously held that the objective characteristics of the latter differ from those of tobacco products in general and, therefore, that electronic cigarettes are not in the same situation as tobacco products (see, to that effect, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraphs 36 and 42).
35


First, it must be recalled that, according to the Court’s settled case-law, the principle of proportionality requires that acts of the EU institutions should be appropriate for attaining the legitimate objectives pursued by the legislation at issue and should not go beyond what is necessary in order to achieve those objectives (judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 85).
36


With regard to judicial review of compliance with those conditions, the Court has accepted that in the exercise of the powers conferred on it the EU legislature must be allowed a broad discretion in areas such as that at issue in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations. Accordingly, the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality 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 of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 49).
37


As regards the assessments of highly complex scientific and technical facts that are necessary in order to determine whether the prohibition on the placing on the market of tobacco products for oral use is proportionate, it must be recalled that the Courts of the European Union cannot substitute their assessment of that material for that of the legislature on which the FEU Treaty has placed that task. The EU legislature’s broad discretion, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts (see, to that effect, judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraphs 150 and 151).
38


Further, the EU legislature must take account of the precautionary principle, according to which, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because the results of studies conducted are inconclusive, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures (judgment of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 47 and the case-law cited).
40


In this case, it must be observed that Directive 2014/40 pursues, according to Article 1 thereof, a twofold objective of facilitating the smooth functioning of the internal market for tobacco and related products while taking as a base a high level of protection of human health, especially for young people (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 80).
48


As regards the appropriateness of the prohibition on the placing on the market of tobacco products for oral use to attaining the objective of ensuring a high level of protection of public health, it must be recalled that that appropriateness cannot be assessed solely in relation to a single category of consumers (see, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 176).
52


Moreover, tobacco products for oral use are particularly dangerous for minors because of the fact that their consumption is hardly noticeable. The consumption of such a product generally involves placing the product between the gum and upper lip and keeping it in place (see, to that effect, judgment of 14 December 2004, Arnold André, C‑434/02, EU:C:2004:800, paragraph 19).
54


Further, in accordance with settled case-law, the objective of protection of health takes precedence over economic considerations (judgment of 19 April 2012, Artegodan v Commission, C‑221/10 P, EU:C:2012:216, paragraph 99 and the case-law cited), the importance of that objective being such as to justify even substantial negative economic consequences (see, to that effect, judgment of 23 October 2012, Nelson and Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 81 and the case-law cited). In this case, even if there is considerable potential for growth in the market for tobacco products for oral use, the economic consequences deriving from the prohibition on the placing on the market of such products remain, in any event, uncertain, since, at the time when Directive 2014/40 was adopted, those products were not present on the market of the Member States subject to Article 17 of Directive 2014/40.
57


Just as the Court stated in that same judgment that the legislative context had not changed at the time of adoption of Directive 2001/37, which had also prohibited the placing on the market of tobacco products for oral use (see, to that effect, judgment of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 40), it must be observed that that context remained the same at the time of adoption of Directive 2014/40.
59


Moreover, as regards more particularly the claim by Swedish Match that the permission given to the marketing of other tobacco and related products demonstrates that the prohibition on the placing on the market of tobacco products for oral use is disproportionate, it must be recalled that an EU measure is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 48).
65


It must be recalled that the principle of subsidiarity is set out in the second paragraph of Article 5(3) TEU, which provides that the 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 by the Union. 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 of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 215).
66


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 (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 219).
67


In that regard, as stated in paragraph 40 of the present judgment, Directive 2014/40 pursues a twofold objective, 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 (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 220).
68


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, as stated in paragraph 58 of the present judgment, some Member States permit the placing on the market of tobacco products for oral use, while other Member States prohibit it, thereby 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 (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 221).
69


The interdependence of the two objectives pursued by that 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 for oral use and that, because of that interdependence, that twofold objective could best be achieved at EU level (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 222).
71


In that regard, it must be recalled that 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. 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 of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 63).
72


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 (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 64).
74


Article 24(3) of Directive 2014/40 therefore concerns an aspect which is not covered by the harmonisation measures in that directive (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 90).
78


In that regard, it must be recalled that, in accordance with settled case-law, the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court with jurisdiction to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of the second paragraph of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 58).
79


It is also settled case-law that the extent of the requirement to state reasons depends on the nature of the measure in question and that, in the case of measures intended to have general application, the statement of reasons may be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other. In that context, the Court has held, in particular, that if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (see, to that effect, judgment of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 59).
81


In particular, recital 32 of Directive 2014/40 states that the prohibition on the sale of tobacco for oral use should be maintained in order to prevent the introduction in the Union (apart from Sweden) of a product that is addictive and has adverse effects on human health, and refers to the reasons stated in Directives 89/622 and 2001/37, which clearly set out, as previously held by the Court (see, to that effect, judgment of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 65), the grounds that gave rise to that prohibition.