Opinion of Advocate General Tanchev delivered on 15 July 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:627
• Date: 15 July 2021
• Celex Number: 62020CC0370
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 15 July 2021(1)

Case C‑370/20

Pro Rauchfrei e.V.

v

JS e.K.

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

(Directive 2014/40/EU — Health warnings to be carried by each unit packet of a tobacco product and any outside packaging — Tobacco vending machine — Article 2(40) — Concept of ‘placing on the market’ — Article 8(3) —Prohibition on health warnings being ‘hidden by other items’ — Article 8(8) — Concept of ‘images’ of unit packets or any outside packaging targeting consumers in the European Union)

1. The dispute in the main proceedings concerns the labelling and packaging of tobacco products sold via a vending machine. Directive 2014/40/EU of the European Parliament and of the Council (2) requires that each unit packet of a tobacco product carry the health warnings for which it provides. Article 8(3) of that directive specifies that those warnings must be fully visible, including not being hidden by certain items. The question before the Bundesgerichtshof (Federal Court of Justice, Germany) is whether, where the health warnings on cigarette packets are not visible while the packets are stocked inside a vending machine, the prohibition on warnings being hidden is infringed. For that to be the case, the vending machine would have to be regarded as an item hiding the warnings, as are, for instance, wrappers and jackets, to which Article 8(3) of that directive makes express reference, which is questionable.

2. The referring court also wishes to know whether there is an infringement of the rule laid down in Article 8(8) of Directive 2014/40 that the images of unit packets and any outside packaging must also carry health warnings. Indeed, the product selection buttons of the vending machine in question in the case in the main proceedings show images of various brands of cigarettes. The question is whether those images may be regarded as images within the meaning of Article 8(8) of that directive, in which case they would be required to carry health warnings, which they do not.

3. Thus, the present case provides the Court with an opportunity to give a ruling, in relation to a tobacco vending machine, on the scope of the requirement that not only each unit packet of a tobacco product, but also the images of that packet, must carry the health warnings provided for in Directive 2014/40.

I. Legal framework

A. European Union law

4. Article 2 of Directive 2014/40 provides:

‘For the purposes of this Directive, the following definitions shall apply:

…

(40) “placing on the market” means to make products, irrespective of their place of manufacture, available to consumers located in the Union, with or without payment, including by means of distance sale; in the case of cross-border distance sales the product is deemed to be placed on the market in the Member State where the consumer is located;

…’

5. Article 8 of Directive 2014/40 states:

‘1. Each unit packet of a tobacco product and any outside packaging shall carry the health warnings provided for in this Chapter in the official language or languages of the Member State where the product is placed on the market.

…

3. Member States shall ensure that the health warnings on a unit packet and any outside packaging are irremovably printed, indelible and fully visible, including not being partially or totally hidden or interrupted by tax stamps, price marks, security features, wrappers, jackets, boxes, or other items, when tobacco products are placed on the market. On unit packets of tobacco products other than cigarettes and roll-your-own tobacco in pouches, the health warnings may be affixed by means of stickers, provided that such stickers are irremovable. The health warnings shall remain intact when opening the unit packet other than packets with a flip-top lid, where the health warnings may be split when opening the packet, but only in a manner that ensures the graphical integrity and visibility of the text, photographs and cessation information.

…

8. Images of unit packets and any outside packaging targeting consumers in the Union shall comply with the provisions of this chapter.’

B. German law

6. Paragraph 11 of the Verordnung über Tabakerzeugnisse und verwandte Erzeugnisse (Regulation on tobacco products and related products; ‘the TabakerzV’), entitled ‘General provisions for the labelling of tobacco products’, states:

‘(1) The following general requirements shall apply to the design and affixing of the health warnings referred to in Paragraphs 12 to 17 to the packages and outer packages of tobacco products: The health warnings

…

4. may not be partially or totally hidden or interrupted at the time of placing on the market, including offering for sale; in the case of packages with flip-top lids where the warnings are split when opening the packet, this may only be done in a manner that ensures graphic integrity and legibility,

…

(2) Representations of packages and outer packaging intended for promotional activities addressed to consumers in the European Union shall comply with the requirements of this Subsection.’ (3)

II. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

7. JS operates two supermarkets in Munich (Germany). From 20 May 2017, it offered cigarettes for sale at the checkout points of those supermarkets in the automatic vending machine shown below (‘the vending machine at issue’):

8. The cigarette packets stocked in the vending machine at issue were not visible to the customer. Although the product selection buttons on that vending machine showed various brands of cigarettes, they did not display the legally prescribed health warnings.

9. The sale was carried out in such a way that the customer first requested the cashier to enable the vending machine and then pressed the selection button for the desired cigarette brand. The cigarette packet was then conveyed from the machine’s dispensing device onto the checkout belt. Payment for the cigarette packet was then made at the checkout point, provided that the customer maintained his or her intention to purchase. Organising the sales process through the vending machine in this way served to prevent theft and to prevent sales to minors.

10. Pro Rauchfrei e.V., a non-profit association, brought an action before the Landgericht München I (Regional Court, Munich I, Germany), seeking, primarily, to prohibit, upon threat of a penalty, JS from offering for sale tobacco products, in particular, cigarettes, in such a way that the health warnings displayed on the unit packets or on their outside packaging are hidden, as described in points 8 and 9 above. In the alternative, Pro Rauchfrei requested that JS be prohibited, upon threat of a penalty, from offering for sale tobacco products, in particular cigarettes, in such a way that images of unit packets without health warnings are displayed in place of the unit packets with such warnings, as described in the same points.

11. By judgment of 5 July 2018, the Landgericht München I (Regional Court, Munich I) dismissed the action.

12. By judgment of 25 July 2019, the Oberlandesgericht München (Higher Regional Court, Munich, Germany) dismissed the appeal brought by Pro Rauchfrei against the judgment of the Landgericht München I (Regional Court, Munich I).

13. Pro Rauchfrei lodged an appeal on a point of law (Revision) against the judgment of the Oberlandesgericht München (Higher Regional Court, Munich) before the Bundesgerichtshof (Federal Court of Justice).

14. The Bundesgerichtshof (Federal Court of Justice) considers that the success of the appeal on a point of law (Revision) depends on the interpretation of the first sentence of Article 8(3) and of Article 8(8) of Directive 2014/40. Thus, it stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

‘(1) Does the concept of “placing on the market” within the meaning of the first sentence of Article 8(3) of [Directive 2014/40] cover the offering of tobacco products via vending machines in such a way that, although the cigarette packets contained in them display the warnings prescribed by law, the cigarette packets are initially stocked in the machine in such a way that they are not visible to the consumer, and the warnings on them become visible only when the customer operates the machine, which has previously been enabled by the cashier, and the cigarette packet is thus dispensed onto the checkout belt prior to the payment process?

(2) Does the prohibition in the first sentence of Article 8(3) of [Directive 2014/40] on warnings being “hidden by other items” cover the case in which the entire tobacco packaging is hidden when the goods are presented by an automatic vending machine?

(3) Is the criterion of “images of unit packets” in Article 8(8) of [Directive 2014/40] satisfied even if an image is not a faithful depiction of the original packaging, but the consumer associates the image with tobacco packaging on account of its design in terms of outline, proportions, colour and brand logo?

(4) Are the requirements of Article 8(8) of [Directive 2014/40] satisfied even if the consumer has the opportunity to see the cigarette packaging with the prescribed warnings prior to the conclusion of the contract of sale, irrespective of the depiction used?’

15. Written observations were submitted by JS and the European Commission. No hearing was held in the case.

III. Analysis

A. The first question referred

16. By its first question, the referring court asks the Court of Justice, in essence, whether the concept of ‘plac[ing] on the market’ within the meaning of the first sentence of Article 8(3) of Directive 2014/40 covers the presentation of cigarette packets by means of a vending machine in such a way that those packets are initially stocked in the machine without being visible to the...