Brussels, 04/05/2016 (Agence Europe) - In its judgement returned on Wednesday 4 May, the Court of Justice of the EU concluded that the 2014 directive (2014/40/EU) complies with EU law. This directive harmonises the rules of the member states on the production, presentation and sales of tobacco products and which, in particular, will ban sales of menthol cigarettes and bring in a specific regime for e-cigarettes from 2020 onwards,
The Court of Justice followed the conclusions of the Advocate General (see EUROPE 11460) and fully rejected the complaint brought by Poland, supported by Romania, which challenged the ban on menthol cigarettes (case C-358/14). The Court joined this case up with two others (C-477/14 and C-547/14), in which two British jurisdictions question the validity of the directive on the basis of requests by a producer of electronic cigarettes (Pillbox 38 Limited) and the company Philip Morris. The directive will, therefore, have to be fully transposed by all of the member states by 20 May 2016.
Menthol cigarettes. The writing is now on the wall for type of flavoured cigarette. The Court found that its ban, with effect from 20 May 2020, was legal with regard to EU law, because this provision aims to ensure a high level of protection for human health, particularly that of young people, and will facilitate the proper functioning of the single market for tobacco products. The Court rejected Poland's argument that less stringent measures (increasing the age limit for this product, placing a specific warning on the packet or banning cross-border sales) would achieve the same objectives.
Standardisation of labelling and packaging. Cigarette packets will have health warnings covering 65% of the external surface area, front and rear. The Court found that this was an appropriate and necessary measure. It also confirmed that the member states could not put any element or device likely to contribute to the promotion of these products or encourage their consumption on the labelling of the packets, the external packaging or on the tobacco products themselves, even if these elements or devices were factually accurate. Lastly, it stated that the member states would only be able to maintain or bring in new requirements for the packaging of tobacco products if these were harmonised by the directive.
Electronic cigarettes. The specific regime at Union level targeting electronic cigarettes proposed by the directive is appropriate and necessary by virtue of the principles of precaution and of the free movement of goods, according to the Court. It goes on to note that the obligations laid down to be observed by producers and importers - such as the obligation to notify the national authorities of any product they intend to market, place specific warnings or limit the nicotine content to 20 mg/ml - are less stringent than those in place for tobacco products.
Reactions to the judgement. The European Commissioner for Health and Food Safety, Vytenis Andriukaitis, described the judgement as “very important”, as it “once again” confirms a “fundamental principle enshrined in the EU law - the high level of health protection prevails over the profit that is done from trading a product that kills people”. He went on to say that he was confident that the “anti-tobacco momentum which has emerged in the EU in recent years - as evidenced by falling EU smoking rates and the introduction of plain packaging in some member states - will continue to grow”.
As one might expect, the tobacco producers reacted quite differently. A spokesperson for Philip Morris International, Marc Firestone, said that the judgement is “specific to detailed aspects of EU law, and reflects the substantial deference that the Court of Justice often shows to the EU institutions when reviewing EU legislation”. He adds: “the Court has not considered whether plain packaging is legal or is capable of reducing smoking rates. Those questions are currently under review by the English High Court and the World Trade Organisation. We look forward to the outcome of those proceedings, as well as the timely implementation of the directive in each of the 28 member states”.
A representative of Japan Tobacco International, Vassilis Vovos, said that the judgement “goes against the fundamental purpose of the EU treaty, which is to further improve the functioning of the internal market by way of harmonised legislation”. He argues that “instead, we are left with an inexplicable decision which may lead member states to believe that they can infringe the principle of free movement of goods within the EU”. (Original version in French by Jan Kordys)