Republic of Poland v European Parliament and Council of the European Union.
Date: 2016-05-04
32


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).
33


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).
34


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).
35


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).
36


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).
37


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 (see 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).
38


Depending on the circumstances, such measures for approximation 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; Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 33; and Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 43).
51


Moreover, as the Advocate General noted in point 54 of her Opinion, although it may be justified to introduce special, if not stricter, rules for certain products by reason of their novelty (judgments in Arnold André, C‑434/02, EU:C:2004:800, paragraph 69, and Swedish Match, C‑210/03, EU:C:2004:802, paragraph 71), it cannot, however, be concluded a contrario that more relaxed rules should apply to products long established on the market for that reason alone.
62


As regards, in the third place, the argument that the contested provisions do not seek to improve the conditions for the functioning of the internal market, contrary to the requirements of Article 114 TFEU, it is apparent from the case-law of the Court that the market for tobacco products is one in which trade between Member States represents a relatively large part and that, therefore, national rules laying down the requirements to be met by those products, in particular those relating to their composition, 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, British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 64).
78


According to settled case-law, the principle of proportionality 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).
79


With regard to judicial review of the conditions referred to in the previous paragraph, the EU legislature must be allowed broad discretion in an area such as that involved in the present case, 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).
80


As regards, in the first place, whether the prohibition on the placing on the market of tobacco products having menthol as a characterising flavour is appropriate, it must be noted that, in accordance with Article 1 of Directive 2014/40, that prohibition has 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.
81


It must be found in that regard, first, that, as is apparent from paragraphs 61 to 64 above, the prohibition on the placing on the market of tobacco products with a characterising flavour is appropriate for facilitating the smooth functioning of the internal market for tobacco and related products.
82


Secondly, that 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.
97


As regards, in the third place, the allegedly disproportionate effects of the prohibition on the use of menthol as a characterising flavour, on account of the negative economic and social consequences to which that prohibition would give rise, it must be noted that, even though it has, in the present case, a broad legislative power, the EU legislature must base its choice on objective criteria and examine whether aims 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).
98


Under Article 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the EU Treaty and the FEU Treaty, draft legislative acts must take account of the need for any burden falling upon economic operators to be minimised and commensurate with the objective to be achieved.
102


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 Article 114(3) 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.
103


Moreover, it must be stated that the mere fact an EU legislative act is likely to affect one Member State more than others cannot be contrary to the principle of proportionality, as long as the conditions referred to in paragraph 78 above are met. Directive 2014/40 has an impact in all Member States and requires that a balance between the different interests involved is ensured, taking account of the objectives of that directive. Therefore, the attempt to strike such a balance, taking into account not the particular situation of a single Member State, but that of all EU Member States, cannot be regarded as being contrary to the principle of proportionality (see by analogy, judgment in Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 39).
111


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).
115


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).
118


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, judgments 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).
119


The Court also points out that the subsidiarity principle is not intended to limit the EU’s competence on the basis of the situation of any particular Member State taken individually, but requires only that the proposed action can, by reason of its scale or effects, be better achieved at the level of the European Union in view of the objectives of the European Union set out in Article 3 TEU, and provisions specific to various areas, including the internal market, laid down in the Treaties (see, to that effect, Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 53).
122


As regards, in the second place, compliance with the 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).
125


In any event, it must be stated that the Republic of Poland participated, in accordance with the arrangements laid down in the FEU Treaty, in the legislative procedure which led to the adoption of Directive 2014/40, which is addressed to it in the same way as to the other Member States represented in the Council. Therefore, the Republic of Poland cannot validly complain that the Parliament and the Council, the authors of that directive, did not place it in a position to know the grounds for the choice of measures which they intended to implement (see, to that effect, Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 62).