Case C‑425/17

Günter Hartmann Tabakvertrieb GmbH & Co. KG

v

Stadt Kempten

(Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof)

(Reference for a preliminary ruling — Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40/EU — Ban on placing tobacco for oral use on the market — Definitions of ‘chewing tobacco’ and ‘tobacco for oral use’ — Paste composed of finely ground tobacco (Thunder Chewing Tobacco) and porous cellulose sachet portions filled with finely ground tobacco (Thunder Frosted Chewing Bags))

Summary — Judgment of the Court (Sixth Chamber), 17 October 2018

Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Scope — Tobacco products intended to be chewed — Concept — Criteria for assessment

(European Parliament and Council Directive 2014/40, Art. 2, points 6 and 8)

Article 2(8) of Directive 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 and repealing Directive 2001/37/EC, read in conjunction with Article 2(6) of that directive, must be interpreted as meaning that only tobacco products which can be consumed in the proper sense only by chewing constitute tobacco products intended to be chewed within the meaning of those provisions, which it is for the national court to determine on the basis of all the relevant objective characteristics of the products concerned, such as their composition, their consistency, their method of dispensation and, where appropriate, their actual use by consumers.

As the European Commission has observed, it is apparent from the travaux préparatoires for Directive 2014/40 that, by the addition of the adverb ‘exclusively’ to the definition of the concept of ‘chewing tobacco’ set out in Article 2(6) of that directive, the EU legislature intended to define that concept in order to limit the possibilities of circumventing the prohibition of tobacco for oral use faced with repeated attempts to market tobacco of the ‘snus’ type under the title of ‘chewing tobacco’. It follows that only products which can consumed in the proper sense only by chewing, that is to say products which can release their essential ingredients in the mouth only by chewing, may be classified as ‘tobacco products intended to be chewed’ within the meaning of Article 2(8) of Directive 2014/40. By contrast, a tobacco product which, whilst also being able to be chewed, is essentially intended to be sucked, that is to say a product which it is sufficient to hold in the mouth for its essential ingredients to be released, cannot be classified as such.

(see paras 31-33, 36, operative part)