Republic of Poland v European Parliament and Council of the European Union.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Writing for the CourtArabadjiev
ECLIECLI:EU:C:2016:323
Procedure TypeRecurso de anulación - infundado
Celex Number62014CJ0358
Docket NumberC-358/14
Date04 May 2016
62014CJ0358

JUDGMENT OF THE COURT (Second Chamber)

4 May 2016 ( *1 )

‛Action for annulment — Approximation of laws — Directive 2014/40/EU — Article 2(25), Article 6(2)(b), Article 7(1) to (5), the first sentence of Article 7(7), Article 7(12) to (14) and Article 13(1)(c) — Validity — Manufacture, presentation and sale of tobacco products — Prohibition on the placing on the market of tobacco products with characterising flavours — Tobacco products containing menthol — Legal basis — Article 114 TFEU — Principle of proportionality — Principle of subsidiarity’

In Case C‑358/14,

ACTION for annulment under Article 263 TFEU, brought on 22 July 2014,

Republic of Poland, represented by B. Majczyna and M. Szwarc, acting as Agents,

applicant,

supported by

Romania, represented by R.-H. Radu, D.M. Bulancea and A. Vacaru, acting as Agents,

intervener,

v

European Parliament, represented by L. Visaggio, J. Rodrigues and A. Pospíšilová Padowska, acting as Agents, with an address for service in Luxembourg,

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

defendants,

supported by

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

French Republic, represented by D. Colas and S. Ghiandoni, acting as Agents,

United Kingdom of Great Britain and Northern Ireland, represented by V. Kaye, C. Brodie and M. Holt, acting as Agents, and by I. Rogers QC and S. Abram and E. Metcalfe, Barristers,

European Commission, represented by M. Van Hoof, C. Cattabriga and M. Owsiany-Hornung, acting as Agents, with an address for service in Luxembourg,

interveners,

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: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 30 September 2015,

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

gives the following

Judgment

1

By its application, the Republic of Poland seeks the annulment of Article 2(25), Article 6(2)(b), Article 7(1) to (5), the first sentence of Article 7(7), Article 7(12) to (14) and Article 13(1)(c) 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).

Legal context

The World Health Organisation Framework Convention on Tobacco Control

2

In the words of the preamble to the World Health Organisation Framework Convention on Tobacco Control, signed in Geneva on 21 May 2003 (‘the FCTC’), to which the European Union and its Member States are party, the Parties to that convention recognise, first, that ‘scientific evidence has unequivocally established that tobacco consumption and exposure to tobacco smoke cause death, disease and disability’, and, secondly, 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’.

3

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.’

4

Article 9 of the FCTC, which is entitled ‘Regulation of the contents of tobacco products’, states:

‘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.’

5

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’.

6

Section 3.1.2 of those 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 properties of tobacco product emissions by adding or removing specific substances.

...

Masking tobacco smoke harshness with flavours contributes to promoting and sustaining tobacco use. Examples of flavouring substances include benzaldehyde, maltol, menthol and vanillin.

Spices and herbs can also be used to improve the palatability of tobacco products. Examples include cinnamon, ginger and mint.

Recommendation

Parties should regulate, by prohibiting or restricting, ingredients that may be used to increase palatability in tobacco products.

...’

Directive 2014/40

7

Recitals 4, 7, 15 to 17, 33 and 60 of Directive 2014/40 state:

‘(4)

In other areas there are still substantial differences between the Member States’ laws, regulations and administrative provisions on the manufacture, presentation and sale of tobacco and related products which present obstacles to the smooth functioning of the internal market. In the light of scientific, market and international developments these discrepancies are expected to increase. This also applies to electronic cigarettes and refill containers for electronic cigarettes (“refill containers”), herbal products for smoking, ingredients and emissions from tobacco products, certain aspects of labelling and packaging and to cross-border distance sales of tobacco products.

...

(7)

Legislative action at Union level is also necessary in order to implement the [FCTC], the provisions of which are binding on the Union and its Member States. The FCTC provisions on the regulation of the contents of tobacco products, the regulation of tobacco product disclosures, the packaging and labelling of tobacco products, advertising and illicit trade in tobacco products are particularly relevant. The Parties to the FCTC, including the Union and its Member States, adopted a set of guidelines for the implementation of FCTC provisions by consensus during various Conferences.

...

(15)

The lack of a harmonised approach to regulating the ingredients of tobacco products affects the smooth functioning of the internal market and has a negative impact on the free movement of goods across the Union. Some Member States have adopted legislation or entered into binding agreements with the industry allowing or prohibiting certain ingredients. As a result, some ingredients are regulated in certain Member States, but not in others. Member States also take differing approaches as regards additives in the filters of cigarettes as well as additives colouring the tobacco smoke. Without harmonisation, the obstacles to the smooth functioning of the internal market are expected to increase in the coming years, taking into account the implementation of the FCTC and the relevant FCTC guidelines throughout the Union and in the light of experience gained in other jurisdictions outside the Union. The FCTC guidelines in relation to the regulation of the contents of tobacco products and regulation of tobacco product disclosures call in particular for the removal of ingredients that increase palatability, create the impression that tobacco products have health benefits, are associated with energy and vitality or have colouring properties.

(16)

The likelihood of diverging regulation is further increased by concerns over tobacco products having a characterising flavour other than one of tobacco, which could facilitate initiation of tobacco consumption or affect consumption patterns. Measures introducing unjustified differences of treatment between different types of flavoured cigarettes should be avoided. However, products with characterising flavour with a higher sales volume should be phased out over an...

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16 practice notes
  • Czech Republic v European Parliament and Council of the European Union.
    • European Union
    • Court of Justice (European Union)
    • 3 Diciembre 2019
    ...thus have a direct effect on the functioning of the internal market (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 32 and the case-law 35 In addition, although recourse to Article 114 TFEU as a legal basis is possible if the aim is to prevent th......
  • Conclusiones de la Abogado General Sra. J. Kokott, presentadas el 13 de junio de 2019.
    • European Union
    • Court of Justice (European Union)
    • 13 Junio 2019
    ...ANGED (C‑233/16, EU:C:2017:852) y las sentencias del Tribunal de Justicia de 4 de mayo de 2016, Polonia/Parlamento y Consejo (C‑358/14, EU:C:2016:323), apartado 79, y de 10 de diciembre de 2002, British American Tobacco (Investments) e Imperial Tobacco (C‑491/01, EU:C:2002:741), apartado 12......
  • Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, VZW and Others v Vlaams Gewest.
    • European Union
    • Court of Justice (European Union)
    • 29 Mayo 2018
    ...Member State, but that of all EU Member States (see, by analogy, judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 103 and the case-law 75 For the remainder, according to the indications set out in the file before the Court, the potential costs ment......
  • República de Polonia contra Parlamento Europeo y Consejo de la Unión Europea.
    • European Union
    • Court of Justice (European Union)
    • 13 Marzo 2019
    ...respecto a los objetivos perseguidos (véanse, en particular, las sentencias de 4 de mayo de 2016, Polonia/Parlamento y Consejo, C‑358/14, EU:C:2016:323, apartado 78, y de 6 de septiembre de 2017, Eslovaquia y Hungría/Consejo, C‑643/15 y C‑647/15, EU:C:2017:631, apartado 95 En lo que atañe a......
  • Request a trial to view additional results
14 cases
  • Czech Republic v European Parliament and Council of the European Union.
    • European Union
    • Court of Justice (European Union)
    • 3 Diciembre 2019
    ...thus have a direct effect on the functioning of the internal market (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 32 and the case-law 35 In addition, although recourse to Article 114 TFEU as a legal basis is possible if the aim is to prevent th......
  • Conclusiones de la Abogado General Sra. J. Kokott, presentadas el 13 de junio de 2019.
    • European Union
    • Court of Justice (European Union)
    • 13 Junio 2019
    ...ANGED (C‑233/16, EU:C:2017:852) y las sentencias del Tribunal de Justicia de 4 de mayo de 2016, Polonia/Parlamento y Consejo (C‑358/14, EU:C:2016:323), apartado 79, y de 10 de diciembre de 2002, British American Tobacco (Investments) e Imperial Tobacco (C‑491/01, EU:C:2002:741), apartado 12......
  • Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, VZW and Others v Vlaams Gewest.
    • European Union
    • Court of Justice (European Union)
    • 29 Mayo 2018
    ...Member State, but that of all EU Member States (see, by analogy, judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 103 and the case-law 75 For the remainder, according to the indications set out in the file before the Court, the potential costs ment......
  • República de Polonia contra Parlamento Europeo y Consejo de la Unión Europea.
    • European Union
    • Court of Justice (European Union)
    • 13 Marzo 2019
    ...respecto a los objetivos perseguidos (véanse, en particular, las sentencias de 4 de mayo de 2016, Polonia/Parlamento y Consejo, C‑358/14, EU:C:2016:323, apartado 78, y de 6 de septiembre de 2017, Eslovaquia y Hungría/Consejo, C‑643/15 y C‑647/15, EU:C:2017:631, apartado 95 En lo que atañe a......
  • Request a trial to view additional results

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