Arnold André GmbH & Co. KG v Landrat des Kreises Herford.
Date: 2004-12-14
19. Arnold André is a company established in Germany which markets cigars, pipe tobacco and traditional Swedish tobacco for oral use called ‘snus’. Snus is finely ground or cut tobacco sold loose or in small sachet portions and intended to be consumed by placing between the gum and the lip.
26. On this point, it must be recalled tha t the Statute of the Court of Justice and the 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.
27. 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 Ripo 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 question referred for a preliminary ruling. The application for the oral procedure to be reopened must therefore be dismissed.
The question referred for a preliminary ruling
30. 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).
31. 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).
32. 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).
33. 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).
34. 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.
35. 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).
38. 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.
39. 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.
40. 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 emerge 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).
45. 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).
46. 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).
57. It is settled case-law that the prohibition of quantitative restrictions and measures having equivalent effect laid down by Article 28 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).
58. Nevertheless, as Article 30 EC provides, the provisions of Article 28 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. 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).
62. 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, Joined Cases C-184/02 and C-223/02 Spain and Finland  v Parliament and Council  [2004] ECR I-0000, paragraph 79).
68. 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).
69. 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.