Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG v Land Berlin.
Date: 2019-01-30
31


The principle of legal certainty indeed requires, according to settled case-law, that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them and that those persons must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (judgment of 25 July 2018, Teglgaard and Fløjstrupgård, C‑239/17, EU:C:2018:597, paragraph 52 and the case-law cited).
32


It must also be recalled, however, that it is not necessary for a legislative act itself to provide details of a technical nature, and that it is open to the EU legislature to have recourse to a general legal framework which is, if necessary, to be made more precise at a later date (see, to that effect, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraphs 78 and 139).
33


The fact that Article 7(1), (7) and (14) of Directive 2014/40, first, does not specify the products with a particular characterising flavour whose EU-wide sales volumes represent 3% or more in a particular product category and, second, does not lay down a specific procedure for determining which products fall within Article 7(14) of the directive does not mean that Article 7(1), (7) and (14) of the directive infringes the principle of legal certainty. In the absence of any legislation in this respect at EU level, it is for the Member States or, if appropriate, the manufacturers themselves to choose a reliable method capable of ensuring compliance with the requirement following from that provision (see, to that effect, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 101).
36


It must be recalled that the principle of equal treatment, as a general principle of EU law, 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 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 35).
37


The comparability of different situations must be assessed with regard to all the elements which characterise them. Those elements must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgment of 12 May 2011, Luxembourg v Parliament and Council, C‑176/09, EU:C:2011:290, paragraph 32).
38


Directive 2014/40 pursues a twofold objective, according to Article 1, namely to facilitate the smooth functioning of the internal market in 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).
40


Moreover, the Court found in the judgment of 4 May 2016, Philip Morris Brands and Others (C‑547/14, EU:C:2016:325, paragraph 114), that tobacco products containing a characterising flavour have similar objective characteristics and similar effects as regards initiating tobacco consumption and sustaining tobacco use.
43


However, as follows from the case-law cited in paragraph 36 above, a difference in treatment between comparable situations is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question and is proportionate to the aim pursued by the treatment (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 47).
44


On this point, the Court has acknowledged that, in the exercise of the powers conferred on it, the EU legislature has a broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 57). The EU legislature was therefore able, in the exercise of its broad discretion, to proceed towards harmonisation only in stages and to require only the gradual abolition of the unilateral measures taken by the Member States (see, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraphs 63 and 134).
51


According to settled case-law, the principle of proportionality requires that acts of the EU institutions must be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve those objectives; where 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 (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 78).
53


Given the objective pursued by the prohibition of placing tobacco products with a characterising flavour on the market, it must be stated that the prohibition is also appropriate for ensuring a high level of protection of human health, especially for young people. It is not disputed that certain flavourings are particularly attractive to them and that they facilitate initiation of tobacco consumption (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraphs 81 and 82).
54


In its judgments of 4 May 2016, Poland v Parliament and Council (C‑358/14, EU:C:2016:323, paragraph 102), and of 4 May 2016, Philip Morris Brands and Others (C‑547/14, EU:C:2016:325, paragraph 190), the Court found that by Article 7(14) of Directive 2014/40 the EU legislature struck a balance between the economic consequences of the prohibition in Article 7 of that directive, on the one hand, and, on the other, the requirement to ensure a high level of protection of human health with regard to a product characterised by harmful properties.
60


It must be recalled that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (judgment of 26 September 2018, Baumgartner, C‑513/17, EU:C:2018:772, paragraph 23).
78


As regards the principle of proportionality, it must be observed that, since general principles of law, which include that principle, form part of the EU legal order, they must be observed not only by the EU institutions but also by the Member States in the exercise of the powers conferred on them by EU directives (judgment of 2 June 2016, ROZ-ŚWIT, C‑418/14, EU:C:2016:400, paragraph 20).
82


Furthermore, as regards the compliance with Article 34 TFEU of the second subparagraph of Article 9(1), the second sentence of Article 9(4)(a), Article 9(6), Article 10(1)(b), (e) and (f),and the first sentence of the first subparagraph of Article 11(1) of Directive 2014/40, it is clear that the principle of the free movement of goods does not preclude prohibitions or restrictions of imports, exports or goods in transit justified inter alia on grounds of protection of the health and life of humans (see, to that effect, judgment of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 60).
89


In addition, since the Court held in the judgment of 4 May 2016, Philip Morris Brands and Others (C‑547/14, EU:C:2016:325, paragraph 141), that the prohibition of any element or feature referring to any flavouring applies irrespective of whether the information in question is factually accurate, it must be considered that the prohibition refers also to non-promotional information mentioning ingredients the use of which is allowed by Directive 2014/40.
94


However, the right to property is not an absolute right and must be viewed in relation to its social function (see, to that effect, judgment of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 113).
95


That consideration is reflected in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented (judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 47).
96


In accordance with that provision, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, must be necessary and actually meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 160).
97


In the present case, the restriction of the use of trade marks was imposed by Directive 2014/40 and concerns only the use by manufacturers of their marks on the labelling of unit packets, the outside packaging and the tobacco product itself, consequently without prejudicing the substance of their trade mark rights, the purpose being to ensure a high level of health protection when the obstacles created by national laws on labelling are eliminated (see, to that effect, judgment of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 150).