The Queen, on the application of: Swedish Match AB and Swedish Match UK Ltd v Secretary of State for Health.
Date: 2004-12-14
24. On this point, it must be recalled that the Statute of the Court of Justice and its Rules of Procedure make no provision for the parties to submit observations in response to the Advocate General’s Opinion (see the order in Case C-17/98 Emesa Sugar  [2000] ECR I-665, paragraph 2). The application for leave to submit written observations in reply to the Advocate General’s Opinion is therefore dismissed.
25. The Court may also, of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure, in accordance with Article 61 of the Rules of Procedure, if it considers that it lacks sufficient information or that the case should be decided on the basis of an argument which has not been debated between the parties (see Case C-309/99 Wouters and Others  [2002] ECR I-1577, paragraph 42, and Case C-470/00 P Parliament  v Ripa di Meana and Others  [2004] ECR I-0000, paragraph 33). In the present case, however, the Court, after hearing the Advocate General, considers that it has all the information necessary for it to answer the questions referred for a preliminary ruling. The application for the oral procedure to be reopened must therefore be dismissed.
The questions referred for a preliminary ruling
Question 2
29. In this respect, it should be recalled that, while a mere finding of disparities between national rules is not sufficient to justify having recourse to Article 95 EC (see, to that effect, Case C-376/98 Germany  v Parliament and Council  [2000] ECR I-8419, paragraph 84), 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, Germany  v Parliament and Council , paragraph 95, and Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco  [2002] ECR I-11453, paragraph 60).
30. It also follows from the Court’s case-law that, while recourse to Article 95 EC as a legal basis is possible if the aim is to prevent future obstacles to trade resulting from the heterogeneous development of national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them (see, to that effect, Case C-350/92 Spain  v Council  [1995] ECR I-1985, paragraph 35, Germany  v Parliament and Council , paragraph 86, Case C-377/98 Netherlands  v Parliament and Council  [2001] ECR I-7079, paragraph 15, and British American Tobacco (Investments) and Imperial Tobacco , paragraph 61).
31. The Court has also held that, where the conditions for recourse to Article 95 EC as a legal basis are fulfilled, the Community 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 ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 62).
32. It should also be noted that the first subparagraph of Article 152(1) EC provides that a high level of protection of human health is to be ensured in the definition and implementation of all Community policies and activities, and that Article 95(3) EC expressly requires that, in achieving harmonisation, a high level of protection of human health should be guaranteed ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 62).
33. It follows from the foregoing that, where there are obstacles to trade or it is likely that such obstacles will emerge in 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 ensure different levels of protection and thereby prevent the product or products concerned from moving freely within the Community, Article 95 EC authorises the Community legislature to intervene by adopting appropriate measures, in compliance with Article 95(3) EC and with the legal principles mentioned in the Treaty or identified in the case-law, in particular the principle of proportionality.
34. Depending on the circumstances, those appropriate 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, in the context of Council Directive 92/59/EEC of 29 June 1992 on general product safety (OJ 1992 L 228, p. 24), Case C-359/92 Germany  v Council  [1994] ECR I-3681, paragraphs 4 and 33).
37. It is common ground that for those products, as indicated in the 14th recital in the preamble to Directive 92/41, there were differences, at the time of adoption of that directive, between the laws, regulations and administrative provisions of the Member States. Two of them had already prohibited the marketing of such products and a third had adopted provisions which, while not yet in force, had the same object. Those provisions were intended, according to their authors, to stop the expansion of consumption of products harmful to health which were new to the markets of the Member States and were thought to be especially attractive to young people.
38. As the market in tobacco products is one in which trade between Member States represents a relatively large part (see British American Tobacco (Investments) and Imperial Tobacco , paragraph 64), those prohibitions of marketing contributed to a heterogeneous development of that market and were therefore such as to constitute obstacles to the free movement of goods.
39. Having regard also to the public’s growing awareness of the dangers to health of the consumption of tobacco products, it was likely that obstacles to the free movement of those products would arise by reason of the adoption by the Member States of new rules reflecting that development and intended more effectively to discourage consumption of those products ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 67).
40. Article 8 of Directive 2001/37 was adopted in a context which, from the point of view of obstacles to the free movement of goods existing in the market for tobacco products as a result of the heterogeneous development of conditions of marketing of tobacco products for oral use in the various Member States, was no different from that which existed when Article 8a of Directive 89/622 was adopted. It should be added that the Act of Accession cannot have any bearing on the assessment of that context. That Act not only excluded the Kingdom of Sweden from the scope of Article 8a, it also required that Member State to take all necessary measures to ensure that tobacco products for oral use were not placed on the market in the other Member States.
43. As regards the question whether recourse to Article 133 EC as a second legal basis of Article 8 was necessary or possible in the present case, it suffices to recall that in paragraph 97 of British American Tobacco (Investments) and Imperial Tobacco  the Court considered that Article 95 EC constituted the only appropriate legal basis for Directive 2001/37 and that it was incorrect for it to cite Article 133 EC as well.
44. However, that incorrect reference to Article 133 EC as a second legal basis for that directive does not of itself mean that the directive is invalid ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 98). Such an error in the citations of a Community act is no more than a purely formal defect, unless it gave rise to irregularity in the procedure applicable to the adoption of that act (see, to that effect, Case 165/87 Commission  v Council  [1988] ECR 5545, paragraph 19, and Joined Cases C-184/02 and C-223/02 Spain and Finland  v Parliament and Council  [2004] ECR I-0000, paragraph 44). The Court went on to hold, in paragraph 111 of British American Tobacco (Investments) and Imperial Tobacco , that recourse to the twofold legal basis of Articles 95 EC and 133 EC did not give rise to irregularity in the procedure for adopting the directive and that the directive was not invalid on that account.
47. It should also be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions are appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, inter alia, Case 137/85 Maizena  [1987] ECR 4587, paragraph 15; Case C-339/92 ADM Ölmühlen  [1993] ECR I-6473, paragraph 15; and Case C-210/00 Käserei Champignon Hofmeister  [2002] ECR I-6453, paragraph 59).
48. With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in an area such as that concerned in the present case, which involves political, economic and social choices on its part, and in which it is called on to undertake complex assessments. Only if a measure adopted in this field is manifestly inappropriate in relation to the objective which the competent institutions are seeking to pursue can the lawfulness of such a measure be affected (see, to that effect, Case C-84/94 United Kingdom  v Council  [1996] ECR I-5755, paragraph 58; Case C-233/94 Germany  v Parliament and Council  [1997] ECR I-2405, paragraphs 55 and 56; Case C-157/96 National Farmers’ Union and Others  [1998] ECR I-2211, paragraph 61; and British American Tobacco (Investments) and Imperial Tobacco , paragraph 123).
59. It is settled case-law that the prohibition of quantitative restrictions and measures having equivalent effect laid down by Articles 28 EC and 29 EC applies not only to national measures but also to measures adopted by the Community institutions (see in particular, to that effect, Case 15/83 Denkavit Nederland  [1984] ECR 2171, paragraph 15; Case C-51/93 Meyhui  [1994] ECR I-3879, paragraph 11; and Case C-114/96 Kieffer and Thill  [1997] ECR I-3629, paragraph 27).
60. Nevertheless, as Article 30 EC provides, the provisions of Articles 28 EC and 29 EC do not preclude prohibitions or restrictions on imports, exports or goods in transit justified inter alia on grounds of protection of the health and life of humans.
61. While the prohibition of marketing tobacco products for oral use under Article 8 of Directive 2001/37 constitutes one of the restrictions referred to in Articles 28 EC and 29 EC, it is nevertheless justified, as indicated in paragraph 58 above, on grounds of the protection of human health. It cannot therefore, in any event, be regarded as having been adopted in breach of the provisions of Articles 28 EC and 29 EC.
63. It must be borne in mind that, while the statement of reasons required by Article 253 EC must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure, so as to enable the persons concerned to ascertain the reasons for it and to enable the Court to exercise judicial review, it is not required to go into every relevant point of fact and law (see, inter alia, Case C-122/94 Commission  v Council  [1996] ECR I-881, paragraph 29).
64. Furthermore, the question whether a statement of reasons satisfies the requirements must be assessed with reference not only to the wording of the measure but also to its context and to the whole body of legal rules governing the matter in question. 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 each of the technical choices made by the institution (see, in particular, Case C-100/99 Italy  v Council and Commission  [2001] ECR I-5217, paragraph 64, and, to that effect, Spain and Finland  v Parliament and Council , paragraph 79).
65. The recitals in the preamble to Directive 92/41 set out clearly the reasons why a measure prohibiting the marketing of tobacco products for oral use was to be introduced in Directive 89/622. In particular, after recalling that scientific experts were of the opinion that all tobacco products entail dangers to health and that it had been proved that smokeless tobacco products were a major risk factor as regards cancer, the preamble further stated that new tobacco products for oral use appearing on the market in certain Member States were particularly attractive to young people, with the risk of their developing an addiction to nicotine if restrictive measures were not taken in time. It was also observed that the Member States most exposed to that problem had already placed total bans on those new products or intended to do so.
66. It should also be stated that the prohibition of marketing tobacco products for oral use laid down in Article 8 of Directive 2001/37 is confined, in the context of the recasting of earlier provisions which constitutes one of the objects of that directive, to confirming the identical measure adopted in 1992. The different treatment reserved in 1992 for those products as opposed to other smokeless tobacco products was the result of circumstances relating to the novelty on the internal market at the time of the products affected by the prohibition, their attraction for young people, and the existence of national prohibitive measures in certain Member States.
70. It is settled case-law that 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 (see, to that effect, Case C-304/01 Spain  v Commission  [2004] ECR I-0000, paragraph 31).
71. Although tobacco products for oral use, as defined in Article 2 of Directive 2001/37, are not fundamentally different in their composition or indeed their intended use from tobacco products intended to be chewed, they were not in the same situation as those products. The tobacco products for oral use which are 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 referred to in that measure. That particular situation thus authorised a difference in treatment, and it cannot validly be argued that there was a breach of the principle of non-discrimination.
The principle of freedom to pursue a trade or profession and the right to property
72. According to the case-law of the Court, the freedom to pursue a trade or profession, like the right to property, is one of the general principles of Community law. Those principles are not absolute rights, however, but must be considered in relation to their social function. Consequently, restrictions may be imposed on the exercise of the freedom to pursue a trade or profession, as on the exercise of the right to property, provided that the restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (see, inter alia, Case 265/87 Schräder  [1989] ECR 2237, paragraph 15; Case C-280/93 Germany  v Council  [1994] ECR I-4973, paragraph 78; Case C-293/97 Standley and Others  [1999] ECR I‑2603, paragraph 54; Joined Cases C-37/02 and C-38/02 Di Lenardo and Dilexport  [2004] ECR I-0000, paragraph 82, and Spain and Finland  v Parliament and Council , paragraph 52).
73. The prohibition on the marketing of tobacco products for oral use laid down in Article 8 of Directive 2001/37 is indeed capable of restricting the freedom of manufacturers of such products to pursue their trade or profession, assuming that they have envisaged such marketing in the geographical region concerned by that prohibition. However, the operators’ right to property is not called into question by the introduction of such a measure. No economic operator can claim a right to property in a market share, even if he held it at a time before the introduction of a measure affecting that market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances (Case C-280/93 Germany  v Council , paragraph 79). Nor can an economic operator claim an acquired right or even a legitimate expectation that an existing situation which is capable of being altered by decisions taken by the Community institutions within the limits of their discretionary power will be maintained (see Case 52/81 Faust  v Commission  [1982] ECR 3745, paragraph 27).
75. As the Court has repeatedly held, a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see Case C-331/88 Fedesa and Others  [1990] ECR I-4023, paragraph 24, and Case C-110/97 Netherlands  v Council  [2001] ECR I-8763, paragraph 137).
76. With regard in particular to the express exclusion of any harmonisation of the laws and regulations of the Member States designed to protect and improve human health laid down in the first indent of Article 129(4) of the EC Treaty (now, after amendment, the first subparagraph of Article 152(4) EC), the Court has held that other articles of the Treaty may not be used as a legal basis in order to circumvent that exclusion (Case C-376/98 Germany  v Parliament and Council , paragraph 79). The Court has, however, stated that, provided that the conditions for recourse to Article 95(1) EC as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that the protection of public health is a decisive factor in the choices to be made (Case C-376/98 Germany  v Parliament and Council , paragraph 88, and British American Tobacco (Investments) and Imperial Tobacco , paragraph 190).
81. It should be borne in mind that, in a field which has been exhaustively harmonised at Community level, a national measure must be assessed in the light of the provisions of that harmonising measure and not of those of primary law (see Case C-37/92 Vanacker and Lesage  [1993] ECR I-4947, paragraph 9, and Case C-324/99 DaimlerChrysler  [2001] ECR I-9897, paragraph 32).