In his conclusions on Thursday 12 April, Advocate General Saugmandsgaard Øe proposes that in Case C-151/17 the European Court of Justice (ECJ) holds that the prohibition on the placing on the market of tobacco for oral use, “snus”, in compliance with directive 2014/40/EU, is valid with regard to the principles of proportionality and non-discrimination.
The United Kingdom prohibited the placing on the market of snus, in accordance with the Tobacco Directive 2014/40/EU. Swedish Match, a company which manufactures and markets snus, considers that this prohibition is incompatible with the principles of proportionality and non-discrimination, despite a ruling by the ECJ to the contrary on 14 December 2004 in joint cases C-210/03 and C-434/02. The company argues that the EU legislature had failed to take into account developments in scientific knowledge and in the regulatory framework applicable to tobacco products since the 2004 ruling.
Hearing the case, the High Court of Justice (England & Wales) requested a preliminary ruling from the ECJ.
In his opinion, Advocate General Henrik Saugmandsgaard Øe considers that the prohibition on the placing on the market of tobacco for oral use is valid.
Advocate General Saugmandsgaard Øe holds that the directive complies with the principle of proportionality in the light of developments in scientific knowledge and that the EU legislature believes that tobacco for oral use is addictive and harmful to health. Although some of the data, in this regard are challenged by studies indicating the contrary, this is not sufficient to call that conclusion into question. He also argues that the EU legislature did not exceed the limits of its discretion in concluding that lifting the prohibition on the placing on the market of tobacco for oral use could result in an overall increase in the harmful effects of tobacco within the EU.
The Advocate General also rejects the argument that the principle of non-discrimination was infringed on account of tobacco for oral use being prohibited from use on the market, as opposed to other tobacco products and electronic cigarettes. He contends that tobacco for oral use and those other products are not in comparable situations having regard to their objective characteristics: those products are different inasmuch as tobacco for oral use was a novelty and a new source of addiction, particularly for young people, given the particular appeal it might have for young people. The ban on tobacco used for smoking could also lead to a black market developing for these products.
The Advocate General argues that alternative measures to a prohibition on snus, such as the imposition of technical standards, would not have any significant preventative effect. (Original version in French by Lucas Tripoteau)