The matter at hand

This matter concerns the legality and interpretation of the Tobacco Products DirectiveDirective 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products harmonising a number of aspects of tobacco manufacture and sale in the EU. Among other things, the Directive provides for the standardisation of the labelling and packaging of tobacco products.

Philip Morris and British American Tobacco brought claims before the referring High Court of Justice of England and Wales seeking judicial review of the intention of the United Kingdom to implement the Tobacco Products DirectiveDirective 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products. They argued that the Directive is invalid on the ground that a number of provisions thereof infringe Articles 114, 290 and 291 TFEUTreaty on the Functioning of the European Union and Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01]. In addition, they argued that the Directive does not allow Member States to prohibit the inclusion of true and non-misleading statements about the tobacco product on the product packaging.

The referring court subsequently referred a large number of questions to the ECJ regarding the validity and interpretation of the Tobacco Products DirectiveDirective 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products.

The judgment of the ECJ

The ECJ first goes into the admissibility of the request and of the questions referred and concludes that several questions are inadmissible, partly because they concern provisions that are not addressed to the Member States (paragraphs 42 – 46) and partly because the referring court did not explain the reasons which led it to raise those questions (paragraphs 47 – 52).

The ECJ then goes into the question of whether Article 24(2) of the Tobacco Products DirectiveDirective 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products allows the Member States to adopt rules in relation to the standardisation of the packaging of tobacco products which are more stringent than those provided by the Directive, and if so, whether this means Article 24(2) is invalid because it infringes Article 114 TFEUTreaty on the Functioning of the European Union.

Regarding the first part of this question, the ECJ rules that Article 24(2) of the Directive must be interpreted as meaning that  Member States are allowed to maintain or introduce further requirements in relation to the standardisation of the packaging of tobacco products, but only in relation to aspects of the packaging which have not been harmonized by the Directive. These aspects include requirements relating to the colours of the packaging (paragraphs 73 - 76). So-called plain packaging legislation is therefore allowed under the Directive.

Regarding the second part of this question, the ECJ acknowledges that the Directive does not guarantee full harmonisation of the packaging requirements for tobacco products and therefore does not eliminate all obstacles to trade between the Member States. “However, that is the inevitable consequence of the method of harmonisation chosen by the EU legislature in the present case. As has been recalled in paragraph 63 of this judgment, the EU legislature has a discretion, in particular with regard to the possibility of proceeding towards harmonisation only in stages and requiring only the gradual abolition of unilateral measures adopted by the Member States” (paragraph 80). The judgment then goes on to explain in detail why the other provisions of the Directive referred to in the order of reference do not infringe 114 TFEUTreaty on the Functioning of the European Union either, nor conflict with the principles of proportionality and subsidiarity. These provisions include the prohibition of tobacco products containing a characteristic flavour, such as menthol, the rules relating to the position and size of health warnings, the option for Member States to prohibit cross-border distance sales of tobacco products to consumers and the common rules imposed on Member States which do permit that method of sale.

As to the scope of Article 13(1) of the Directive, the ECJ holds that this Article prohibits the display “of any element or feature that is such as to promote a tobacco product or encourage its consumption”, including promotion or encouragement that “may result from certain information or claims, even when these are factually accurate”. The ECJ explains that the high level of protection of human health pursued by the Directive requires that “consumers of tobacco products, who are a particularly vulnerable class of consumers because of the addictive effects of nicotine, should not be encouraged to consume those products by means of, albeit factually accurate, information, which they may interpret as meaning that the risks associated with their habits are reduced or that the products have certain benefits” (paragraphs 143 and 144). This includes, for example, information about the nicotine, tar or carbon monoxide content, information referring to taste, smell, flavourings and additives, words or expressions like ‘low-tar’, ‘light’, ‘ultra-light’, ‘natural’, ‘organic’, ‘without additives’, ‘without flavours’ or ‘slim’, “and other elements or features that could mislead consumers, in particular young people, by suggesting that the products concerned are less harmful or that they have beneficial effects” (paragraph 142).

The ECJ rules that these restrictions do not infringe the freedom of expression and information protected by Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01], because they strike a fair balance between that fundamental freedom and the legitimate general interest objectives protected by the Directive (paragraph 161).