Case C‑151/17

Swedish Match AB

v

Secretary of State for Health

(Request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court))

(Reference for a preliminary ruling — Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40/EU — Article 1(c) and Article 17 — Prohibition on the placing on the market of tobacco products for oral use — Validity)

Summary — Judgment of the Court (First Chamber), 22 November 2018

1. Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Prohibition on the placing on the market of tobacco products for oral use — Infringement of the principle of equal treatment vis-à-vis other tobacco products and related products — None

   (European Parliament and Council Directive 2014/40, Arts 1(c), 2(14) and 17)

2. Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Prohibition on the placing on the market of tobacco products for oral use — Breach of principle of proportionality — None

   (European Parliament and Council Directive 2014/40, Art. 1(c) and 17)

3. Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Prohibition on the placing on the market of tobacco products for oral use — Infringement of the principle of subsidiarity — None

   (European Parliament and Council Directive 2014/40, Arts 1(c), 17 and 24(3); Council Directive 92/41)

4. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Meaning — Prohibition on the placing on the market of tobacco products for oral use — Included — Justification — Protection of public health — Lawfulness

   (Arts 34 and 35 TFEU; European Parliament and Council Directive 2014/40, Arts 1(c) and 17)

5. Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40 — Prohibition on the placing on the market of tobacco products for oral use — Infringement of the rights to human dignity, private and family life and protection of health — None

   (Charter of Fundamental Rights of the European Union, Arts 1, 7, 35 and 52(1); European Parliament and Council Directive 2014/40, Arts. 1(c) and 17)

1.  See the text of the judgment.

   (see paras 25-34)

2.  Given that, if the prohibition on placing on the market tobacco products for oral use were to be lifted, the positive effects would be uncertain with respect to the health of consumers seeking to use those products as an aid to the cessation of smoking and, moreover, there would be risks to the health of other consumers, particularly young people, requiring the adoption, in accordance with the precautionary principle, of restrictive measures, Article 1(c) and Article 17 of Directive 2014/40 cannot be regarded as being manifestly inappropriate to the objective of ensuring a high level of public health. Conversely, less restrictive measures, such as those laid down for other tobacco products in Directive 2014/40, in particular the strengthening of health warnings and the prohibition on flavoured tobacco, do not appear to be equally appropriate to achieving the objective pursued.

   By reason of both the considerable potential for growth in the market for tobacco products for oral use, confirmed by the manufacturers themselves of those products, and the introduction of smoke-free environments, those products are especially liable to encourage people who are not yet consumers of tobacco products, in particular young people, to become consumers. Moreover, tobacco products for oral use are particularly dangerous for minors because of the fact that their consumption is hardly noticeable. The consumption of such a product generally involves placing the product between the gum and upper lip and keeping it in place (see, to that effect, judgment of 14 December 2004, Arnold André, C‑434/02, EU:C:2004:800, paragraph 19). Consequently, the prohibition on the placing of tobacco products for oral use on the market does not manifestly exceed what is necessary in order to attain the objective of ensuring a high level of protection of public health.

   With respect to the objective of facilitating the smooth functioning of the internal market of tobacco and related products, it must be stated that the prohibition on the placing on the market of tobacco products for oral use laid down by those provisions is also appropriate to facilitating the smooth functioning of the internal market of tobacco and related products. The Court observed in paragraph 37 of its judgment of 14 December 2004, Swedish Match (C‑210/03, EU:C:2004:802), that there were differences, at the time of adoption of Directive 92/41, between the laws, regulations and administrative provisions of the Member States intended to stop the expansion in consumption of products harmful to health which were novel to the markets of the Member States and were thought to be especially attractive to young people. Accordingly, Article 1(c) and Article 17 of Directive 2014/40 do not lead to disadvantages that are manifestly disproportionate to the aims pursued.

   (see paras 49-53, 55, 56, 61)

3.  As regards the claim that Article 24(3) of Directive 2014/40 demonstrates that the objectives of that directive could be adequately achieved by the Member States, it must be observed that that provision grants to each Member State the option of prohibiting a certain category of tobacco or related products on grounds relating to the specific situation of that Member State, provided that those provisions are justified by the need to protect public health, while the Commission retains the power to approve or reject those provisions of national law, after having verified, taking into account the high level of protection of human health achieved by that directive, whether or not they are justified, necessary and proportionate to their aim and whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between the Member States.

   In that regard, it must be recalled that 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. It was thus open to the EU legislature, in the exercise of that discretion, to proceed towards harmonisation only in stages and to require only the gradual abolition of unilateral measures adopted by the Member States (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 63). Depending on the circumstances, the measures referred to in Article 114(1) TFEU 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 (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 64). In having prohibited the placing on the market of tobacco products for oral use, while permitting the marketing of other tobacco products, the EU legislature must be regarded as having undertaken a harmonisation in stages of tobacco products. Article 24(3) of Directive 2014/40 therefore concerns an aspect which is not covered by the harmonisation measures in that directive (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 90). Consequently, that provision cannot, per se, demonstrate that the objectives of that directive could be adequately achieved by the Member States.

   (see paras 70-75)

4.  See the text of the judgment.

   (see para. 84)

5.  See the text of the judgment.

   (see paras 87-91)