Philip Morris Brands SARL and Others v Secretary of State for Health.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Arabadjiev
• ECLI: ECLI:EU:C:2016:325
• Date: 04 May 2016
• Docket Number: C-547/14
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Second Chamber)

4 May 2016 ( *1 )

‛Reference for a preliminary ruling — Approximation of laws — Directive 2014/40/EU — Articles 7, 18 and 24(2) and (3) — Articles 8(3), 9(3), 10(1)(a), (c) and (g), 13 and 14 — Manufacture, presentation and sale of tobacco products — Validity — Legal basis — Article 114 TFEU — Principle of proportionality — Principle of subsidiarity — Fundamental rights of the European Union — Freedom of expression — Charter of Fundamental Rights of the European Union — Article 11’

In Case C‑547/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (United Kingdom), made by decision of 7 November 2014, received at the Court on 1 December 2014, in the proceedings

The Queen, on the application of:

Philip Morris Brands SARL,

Philip Morris Ltd,

British American Tobacco UK Ltd

v

The Secretary of State for Health,

Interested parties and interveners:

Imperial Tobacco Ltd,

JT International SA,

Gallaher Ltd,

Tann UK Ltd,

Tannpapier GmbH,

V. Mane Fils,

Deutsche Benkert GmbH & Co. KG,

Benkert UK Ltd,

Joh. Wilh. von Eicken GmbH,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the First Chamber, acting as President of the Second Chamber, J.L. da Cruz Vilaça, A. Arabadjiev (Rapporteur), C. Lycourgos and J.-C. Bonichot, Judges,

Advocate General: J. Kokott,

Registrar: I. Illéssy, Administrator,

having regard to the written procedure and further to the hearing on 1 October 2015,

after considering the observations submitted on behalf of:

— Philip Morris Brands SARL and Philip Morris Ltd, by M. Demetriou QC, K. Nairn QC, D. Piccinin and J. Egerton-Peters, Barristers,

— British American Tobacco UK Ltd, by N. Pleming QC, S. Ford and D. Scannell, Barristers, and L. Van Den Hende, advocaat, instructed by A. Lidbetter, Solicitor,

— Imperial Tobacco Ltd, by D. Rose QC, B. Kennelly and J. Pobjoy, Barristers, instructed by E. Sparrow and J. Gale, Solicitors,

— JT International SA and Gallaher Ltd, by J. MacLeod QC, D. Anderson QC, J. Flynn QC and V. Wakefield, Barrister, instructed by A. Morfey, T. Snelling and T. Baildam, Solicitors,

— Tann UK and Tannpapier GmbH, by T. Johnston, Barrister, instructed by S. Singleton, Solicitor,

— V. Mane Fils, by M. Chamberlain QC and Z. Al-Rikabi, Barrister, instructed by P. Wareham and J. Robinson, Solicitors,

— Deutsche Benkert GmbH & Co. KG and Benkert UK Ltd, by A. Henshaw QC and D. Jowell QC, instructed by M. Evans and F. Liberatore, Solicitors,

— Joh. Wilh. von Eicken GmbH, by A. Howard, Barrister, instructed by A.‑M. Irwin and A. Rook, Solicitors,

— the United Kingdom Government, by V. Kaye and C. Brodie, acting as Agents, and by M. Hoskins QC, I. Rogers QC and S. Abram and E. Metcalfe, Barristers,

— Ireland, by J. Quaney and A. Joyce, acting as Agents, and by E. Barrington, Senior Counsel, J. Cooke, Senior Counsel, and E. Carolan, Barrister-at-Law,

— the French Government, by D. Colas and R. Coesme, acting as Agents,

— the Italian Government, by G. Palmieri, acting as Agent, and P.G. Marrone, avvocato dello Stato,

— the Hungarian Government, by M.Z. Fehér, G. Koós and M. Bóra, acting as Agents,

— the Polish Government, by B. Majczyna, acting as Agent,

— the Portuguese Government, by L. Inez Fernandes and A. Seiça Neves, acting as Agents,

— the European Parliament, by L. Visaggio, A. Tamás and M. Sammut, acting as Agents,

— the Council of the European Union, by J. Herrmann, O. Segnana and M. Simm, acting as Agents,

— the European Commission, by M. Van Hoof, J. Tomkin and C. Cattabriga, acting as Agents,

— the Kingdom of Norway, by K. Moen and K. Kloster, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 23 December 2015,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation and validity of a number of provisions 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 (OJ 2014 L 127, p. 1).

2 The request has been made in two sets of proceedings brought by (i) Philip Morris Brands SARL and Philip Morris Ltd (‘PMI’) and (ii) British American Tobacco UK Ltd (‘BAT’) against the Secretary of State for Health, concerning the legality of the ‘intention and/or obligation’ of the United Kingdom Government to implement Directive 2014/40.

Legal context

World Health Organisation Framework Convention on Tobacco Control

3 In the words of the preamble to the World Health Organisation Framework Convention on Tobacco Control (‘the FCTC’), signed in Geneva on 21 May 2003, to which the European Union and its Member States are party, the Parties to that convention recognise that ‘scientific evidence has unequivocally established that tobacco consumption and exposure to tobacco smoke cause death, disease and disability’ and that ‘cigarettes and some other products containing tobacco are highly engineered so as to create and maintain dependence, and that many of the compounds they contain and the smoke they produce are pharmacologically active, toxic, mutagenic and carcinogenic, and that tobacco dependence is separately classified as a disorder in major international classifications of diseases’.

4 Article 7 of the FCTC, which is entitled ‘Non-price measures to reduce the demand for tobacco’, provides: ‘… Each Party shall adopt and implement effective legislative, executive, administrative or other measures necessary to implement its obligations pursuant to Articles 8 to 13 and shall cooperate, as appropriate, with each other directly or through competent international bodies with a view to their implementation. The Conference of the Parties shall propose appropriate guidelines for the implementation of the provisions of these Articles.’

5 Article 9 of the FCTC, which is entitled ‘Regulation of the contents of tobacco products’, provides: ‘The Conference of the Parties, in consultation with competent international bodies, shall propose guidelines for testing and measuring the contents and emissions of tobacco products, and for the regulation of these contents and emissions. Each Party shall, where approved by competent national authorities, adopt and implement effective legislative, executive and administrative or other measures for such testing and measuring, and for such regulation.’

6 Article 11 of the FCTC, which is entitled ‘Packaging and labelling of tobacco products’, provides: ‘1. Each Party shall, within a period of three years after entry into force of this Convention for that Party, adopt and implement, in accordance with its national law, effective measures to ensure that: (a) tobacco product packaging and labelling do not promote a tobacco product by any means that are false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions, including any term, descriptor, trademark, figurative or any other sign that directly or indirectly creates the false impression that a particular tobacco product is less harmful than other tobacco products. These may include terms such as “low tar”, “light”, “ultra-light” or “mild”; and (b) each unit packet and package of tobacco products and any outside packaging and labelling of such products also carry health warnings describing the harmful effects of tobacco use, and may include other appropriate messages. These warnings and messages: … (iii) shall be large, clear, visible and legible, (iv) should be 50% or more of the principal display areas but shall be no less than 30% of the principal display areas, (v) may be in the form of or include pictures or pictograms.’

7 Under Section 1.1 of the Partial Guidelines for Implementation of Articles 9 and 10 of the World Health Organisation Framework Convention on Tobacco Control (‘the Partial Guidelines for Implementation of Articles 9 and 10 of the FCTC’), the parties ‘are ... encouraged to implement measures beyond those recommended by these guidelines’.

8 Section 3.1.2 of those partial guidelines, which is headed ‘Ingredients (Regulation)’, describes the measures that the Contracting Parties could introduce to regulate ingredients, stating as follows: ‘3.1.2.1 Background Regulating ingredients aimed at reducing tobacco product attractiveness can contribute to reducing the prevalence of tobacco use and dependence among new and continuing users. ... 3.1.2.2 Tobacco Products (i) Ingredients used to increase palatability The harsh and irritating character of tobacco smoke provides a significant barrier to experimentation and initial use. Tobacco industry documents have shown that significant effort has been put into mitigating these unfavourable characteristics. Harshness can be reduced in a variety of ways including: adding various ingredients, eliminating substances with known irritant properties, balancing irritation alongside other significant sensory effects, or altering the chemical...