Opinion of Advocate General Emiliou delivered on 12 June 2025.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2025:435
• Date: 12 June 2025

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 12 June 2025 (1)

Case C‑731/23 P

Nicoventures Trading Ltd,

British American Tobacco (Germany) GmbH,

British American Tobacco Italia SpA (BAT Italia),

British American Tobacco Polska Trading sp. z o.o.,

British American Tobacco España SA,

P.J. Carroll & Company Ltd

v

European Commission

( Appeal – Public Health – Directive 2014/40/EU – Delegated Directive (EU) 2022/2100 – Heated tobacco products – Article 263 TFEU – Standing – Individual concern – Plaumann case-law – Systematisation and reconsideration of the case-law – Closed-group test )

I. Introduction

1. ‘Before the law stands a doorkeeper. A man from the country comes to this doorkeeper, and asks for admission to the law. But the doorkeeper says that he cannot grant him admission now. The man reflects, and then asks if he will therefore be permitted to enter later. “It is possible,” the doorkeeper says, “but not now.” … The man from the country had not expected such difficulties; the law is after all meant to be accessible to everybody at all times, he thinks’.

2. This passage from Franz Kafka’s short story, Before the Law, (2) seems to me quite appropriate to reflect the difficulty that applicants face when attempting to, first, understand whether they are ‘individually concerned’ by an EU act within the meaning of Article 263 TFEU and, then, establish that before the EU Courts.

3. The basic test for the requirement of individual concern was – as it is well known – first developed in 1963 in the Plaumann case: persons other than those to whom a measure is addressed may claim to be ‘individually concerned’, within the meaning of the fourth paragraph of Article 263 TFEU, only if that measure affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed (‘the Plaumann formula’). (3)

4. In the subsequent case-law, that formula was not only constantly confirmed, but it also applied in a rather rigorous manner by the Court (‘the Plaumann case-law’). The Court did so despite some proposals coming from within the institution to amend it, and the (at times, rather harsh) criticism voiced in legal scholarship. Even though the main criticism levelled to the Plaumann case-law is that of being too restrictive, observers also lament its obscurity and complexity, as well as some inconsistencies in its application over the years.

5. The present case offers the Court the opportunity to revisit that case-law. The appellants seek to set aside the order of 20 September 2023, Nicoventures Trading and Others v Commission, (4) in which the General Court had declared their action for annulment against Delegated Directive (EU) 2022/2100 (5) inadmissible on the ground that the appellants were directly, but not individually, concerned by it.

6. My analysis will show that, under a strict and formalistic application of the Plaumann case-law, the appellants in the present case might not be considered to be ‘individually concerned’ by the contested measure, whereas they would be under a more supple and realistic application thereof. In fact, my opinion is that the fair outcome of the case would be precisely that: they should be able to challenge the contested measure before the EU Courts. Considering them as not being ‘individually concerned’ by that measure may perhaps be in line with certain precedents of the EU Courts but, in my view, it would be inconsistent with a sound interpretation of the fourth paragraph of Article 263 TFEU, a fortiori in the post-Lisbon EU legal system.

7. Against that background, the present Opinion aims, most of all, to propose to the Court of Justice that, some 60 years after the delivery of the judgment in Plaumann, the time is ripe for considering whether and, if so, to what extent, the doorkeeper should open the door of the law.

II. Factual and legal background to the dispute

8. The background to the dispute is set out in paragraphs 2 to 6 of the order under appeal. For the purposes of the present proceedings, it may be summarised as follows.

9. Nicoventures Trading Ltd, British American Tobacco (Germany) GmbH, British American Tobacco Italia SpA (BAT Italia), British American Tobacco Polska Trading sp. z o.o., British American Tobacco España, SA and P.J. Carroll & Company Ltd (‘the appellants’) belong to the British American Tobacco group (‘the BAT group’), which manufactures and markets tobacco products. The appellants are active in the development and commercialisation of non-combustible products, including heated tobacco products, in the European Union.

10. Directive 2014/40/EU (6) regulates the placing on the market of tobacco products. To that end, it seeks to approximate the laws, regulations and administrative provisions of the Member States concerning, inter alia, the ingredients, labelling and packaging of tobacco products.

11. Article 7(1) and (7) of Directive 2014/40 provides that Member States are to prohibit the placing on the market of tobacco products with a characterising flavour and of those containing flavourings in any of their components. Article 7(12) of that directive, before it was amended by the contested measure, exempted tobacco products other than cigarettes and roll-your-own tobacco from the prohibitions laid down in paragraphs 1 and 7 of that provision. Similarly, the first subparagraph of Article 11(1) of Directive 2014/40, before it was amended by the contested measure, provided that the Member States could exempt tobacco products for smoking other than cigarettes, roll-your-own tobacco and waterpipe tobacco from certain obligations concerning the labelling of tobacco products and the mandatory affixing on the packaging of certain warnings, information messages and combined health warnings. In addition, Article 7(12) and Article 11(6) of that directive provide that the European Commission is to adopt delegated acts to withdraw the exemptions referred to in Article 7 or the possibility of granting the exemptions referred to in Article 11 for a particular product category, if there is a substantial change of circumstances as established in a report drawn up by the Commission.

12. On 15 June 2022, the Commission, in accordance with Directive 2014/40, published a report establishing a substantial change of circumstances for heated tobacco products. Following that report, the Commission adopted the contested measure on 29 June 2022. Article 1 of the contested measure amended Article 7(12) and Article 11(1) of Directive 2014/40. As from 23 October 2023 – the date by which the measures provided for in the contested measure must have been transposed – heated tobacco products were no longer subject to the exemptions laid down in Articles 7 and 11 of Directive 2014/40.

III. Procedure before the General Court and the order under appeal

13. By their action under Article 263 TFEU before the General Court, the applicants sought the annulment of the contested measure, putting forward two pleas in law in support of their action. For its part, the Commission submitted a plea of inadmissibility of the action.

14. By the order under appeal, the General Court declared the action inadmissible and ordered the appellants to pay the costs. As mentioned above, the General Court found that the appellants were directly, but not individually, concerned by the contested measure.

IV. Procedure before the Court of Justice and the forms of order sought

15. In their appeal before the Court, the appellants ask it to (i) set aside the order under appeal; (ii) if the state of the proceedings so permit, reject the plea of inadmissibility, declare the action admissible and refer the case back to the General Court to rule on the substance; and (iii) order the Commission to pay the costs of the proceedings.

16. The Commission asks the Court of Justice to reject the appeal and order the appellants to bear the costs.

17. By decision of the President of the Court of 25 April 2024, the French Republic was allowed to intervene in support of the form of order sought by the Commission.

V. Assessment

18. At the outset, it may be helpful to recall that, pursuant to Article 263 TFEU, non-privileged applicants can challenge EU acts which produce legal effects when the act (i) is addressed to them; (ii) is of direct and individual concern to them; or (iii) is a regulatory act not entailing implementing measures and is of direct concern to them. The present case regards the second instance above, and only the interpretation of the ‘individual concern’ requirement.

19. In support of their appeal, the appellants rely on a single ground of appeal, divided into two parts, alleging errors of law made by the General Court in the assessment of whether they are individually concerned by the contested measure.

20. Before assessing the appellants’ arguments (Sections B and C below), I find it useful to discuss, in general, the Plaumann case-law (Section A).

A. Preliminary remarks: on the past, present and future of the Plaumann case-law

21. In this section of the Opinion, first, I shall attempt to systematise the Plaumann case-law. Second, I will discuss the criticism against that case-law. Third, I will explain why I am of the view that the basic idea behind the Plaumann formula is broadly correct and, consequently, that it should not be abandoned. Lastly, I will explain that, at times, the concrete application of that test has been excessively strict and inconsistent. Accordingly, I shall propose to the Court of Justice to deliver a landmark ruling in which it re-examines, clarifies and possibly fine-tunes the application of the Plaumann case-law.

1. The Plaumann case-law, as the law currently stands

22. As explained in the introduction, since the judgment in Plaumann...