Arnold André GmbH & Co. KG v Landrat des Kreises Herford.

• Jurisdiction: European Union
• Celex Number: 62002CC0434
• ECLI: ECLI:EU:C:2004:487
• Date: 07 September 2004
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-210/03

OPINION OF ADVOCATE GENERAL

GEELHOED

delivered on 7 September 2004 (1)

Case C-434/02

Arnold André GmbH & Co. KG

v

Landrat des Kreises Herford

(Reference for a preliminary ruling from the Verwaltungsgericht Minden – Germany)

(Validity of Article 8 of Directive 2001/37/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products – Prohibition of the placing on the market of tobacco for oral use – Maintenance of the sale of ‘snus’ in Sweden pursuant to Article 151(1) of the 1994 Act of Accession (Annex XV, Chapter X, ‘Miscellaneous’) – Proportionality of a complete ban on marketing (interpretation of Articles 28 EC and 95 EC)

and

Case C-210/03

Swedish Match AB andSwedish Match AB UK Ltd

v

Secretary of State for Health

(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court))

(Interpretation of Articles 28 EC, 29 EC and 30 EC – Compatibility of a national provision which prohibits the supply of tobacco products for oral use – Validity of Article 8 of Directive 2001/37/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products – Prohibition of the sale of tobacco for oral use – Maintenance of the sale of ‘snus’ in Sweden pursuant to Article 15(1) of the 1994 Act of Accession)

I – Introduction

1. The main issue that arises in these two cases is the validity of Article 8 of Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products (hereinafter ‘the 2001 Directive’). (2) Case C‑434/02 stems from a reference by the Verwaltungsgericht (Administrative Court) Minden in Germany and Case C‑210/03 from a reference by the High Court of Justice of England & Wales, Queen´s Bench Division.

2. According to Article 8 of the Directive Member States are to prohibit the placing on the market of tobacco for oral use, without prejudice to Article 151 of the Act of Accession of Austria, Finland and Sweden. In Sweden ‘snus’ may still be sold.

3. These cases can be regarded as a sequel to Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco, (3) in which the Court examined the validity of the Directive in general. This examination did not disclose any factor of such a kind as to affect the validity of the Directive. However, given the request of the referring court in that case, the Court did not specifically consider Article 8 of the Directive.

4. Article 8 of the Directive prohibits the placing on the market of a tobacco product which is only used on a very small scale within the European Union, mainly within one MemberState (Sweden), whereas the marketing of all other more common tobacco products is still permitted, subject to a certain number of strict requirements. Moreover, as has been stated before the Court and is supported by many scientific reports, using tobacco for oral use is less harmful to health than smoking cigarettes and cigars.

5. Another important factor in this case is that the ban on tobacco for oral use was introduced in 1992 as part of a coherent package of measures aiming to combat the use of tobacco. The ban was justified on the ground that it concerned products which were not yet known on the Community market and could be attractive to young people. The ban was confirmed in the 2001 Directive, although a number of relevant changes had taken place in the context. Firstly, Sweden, where the use of snus is traditional and widespread, had acceded to the European Union. Secondly, Community policy on smokeless tobacco products other than tobacco for oral use was tending to become more flexible, contrary to the policy on cigarettes.

6. In this context the Court is required to answer the following questions:

– can a total ban on the marketing of certain products be based on Article 95 EC?

– is the ban on tobacco for oral use consistent with the principle of proportionality?

– to what extent does Community law require equal treatment of similar products?

– did the Community legislature comply with the obligation to state the reasons on which the prohibition is based?

7. In these cases the applicability of a number of other principles of law has been questioned as well, mainly by the claimants. I would mention in the first place the fundamental rights protected by the European Convention on Human Rights, more specifically the right of property and the freedom to pursue a trade or business and, in the second place, freedom of choice for the consumer, in so far as the consumer is denied the right to opt for less harmful tobacco products. These points can be assessed by simple reference to Case C‑491/01 and other case-law of the Court on restrictions on free movement of goods. I will not discuss them in my Opinion.

8. Another argument put forward by the claimants relates to the free movement of goods itself, in relation to the fact that snus can be lawfully marketed in one MemberState. As the claimants assert, the fact that snus is lawfully available only in Sweden is an impediment to the internal market. However, since this impediment is established at the level of a Treaty, in particular the Treaty of Accession of Sweden, the Court does not have to assess whether this impediment can be justified on public-interest grounds.

II – The legal framework

9. The ban on the marketing of tobacco for oral use was laid down in Council Directive 92/41/EEC of 15 May 1992 (hereinafter ‘the 1992 Directive’) amending Directive 89/622/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products (hereinafter ‘the 1989 Directive’). (4)

10. Article 8a of the 1989 Directive (as amended in 1992) provides that Member States are to prohibit the placing on the market of tobacco for oral use. According to Article 2(4), ‘tobacco for oral use’ means ‘all products for oral use, except those intended to be smoked or chewed, made wholly or partly of tobacco, in powder or particulate form or in any combination of these forms – particularly those presented in sachet portions or porous sachets – or in a form resembling a food product’. This definition remained unchanged under the 2001 Directive and includes snus. (5)

11. According to the preamble to the 1992 Directive the ban on tobacco for oral use is based on the following considerations related to the health risks of the products concerned:

– it has been proved that smokeless tobacco products are a major risk factor as regards cancer;

– scientific experts are of the opinion that the addiction caused by tobacco consumption constitutes a danger meriting a specific warning on every tobacco product;

– new tobacco products for oral use which have appeared on the market in certain Member States are particularly attractive to young people;

– there is a real risk that the new products for oral use will be used above all by young people, thus leading to nicotine addiction, unless restrictive measures are taken in time;

– in accordance with the conclusions of the studies conducted by the International Agency for Research on Cancer, tobacco for oral use contains particularly large quantities of carcinogenic substances and these new products cause cancer of the mouth in particular;

– the only appropriate measure is a total ban; however, such a ban should not affect traditional tobacco products for oral use.

12. Since Article 100a of the EC Treaty (now Article 95 EC) formed the legal basis of the 1992 Directive the preamble also refers to the internal market. In particular it is stated that ‘the sales bans on such tobacco already adopted by three Member States have a direct impact on the establishment and operation of the internal market’.

13. The 1989 Directive (as modified in 1992) was repealed and replaced by Directive 2001/37. As mentioned in the introduction of this Opinion, Article 8 of the Directive bans the placing on the market of tobacco for oral use, with a derogation for Sweden. The preamble to the Directive does not give reasons for this ban, apart from the reminder that Directive 89/622 prohibited the marketing of certain types of tobacco for oral use (with a derogation for Sweden).

14. In the Federal Republic of Germany Article 8a of Directive 89/622 is transposed into national law by Paragraph 5a of the German Regulation on Tobacco Products, (6) which prohibits the commercial marketing of tobacco products that are intended for any oral use other than smoking or chewing.

15. In the United Kingdom the prohibition is implemented in the Tobacco for Oral Use (Safety) Regulations 1992 (hereinafter ‘the 1992 Regulations’), which provide that ‘no person shall supply, offer to supply, agree to supply, expose for supply or possess for supply any tobacco for oral use.’ The 1992 Regulations were enacted pursuant to powers in domestic law contained in the Consumer Protection Act 1987.

16. Finally I would mention the regulation of the labelling of smokeless tobacco products that are not covered by the ban on marketing. According to the 1992 Directive unit packets of smokeless tobacco products were to carry the following specific warning: ‘Causes cancer’. However, under the 2001 Directive a milder warning is sufficient. According to Article 5(4) of that Directive, ‘[t]obacco products for oral use, where their marketing is permitted under Article 8, and smokeless tobacco products shall carry the following warning: “This tobacco product can damage your...