Key facts of the case:
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
Results (sanctions) and key consequences of the case:
...the Court (Second Chamber) hereby rules:
- Article 24(2) 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 must be interpreted as permitting Member States to maintain or introduce further requirements in relation to aspects of the packaging of tobacco products which are not harmonised by that directive.
- Article 13(1) of Directive 2014/40 must be interpreted as prohibiting the display, on the labelling of unit packets and on the outside packaging, as well as on the tobacco product itself, of any information covered by that provision, even if the information concerned is factually accurate.
- Consideration of the questions referred for a preliminary ruling by the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) has disclosed no factor of such a kind as to affect the validity of Articles 7, 18 and 24(2) and (3) of Directive 2014/40 or that of the provisions of Chapter II of Title II of that directive.
- Article 11 of the Charter affirms the freedom of expression and information. That freedom is also protected under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which applies, in particular, as is clear from the case-law of the European Court of Human Rights, to the dissemination by a business of commercial information, including in the form of advertising. Given that the freedom of expression and information laid down in Article 11 of the Charter has — as is clear from Article 52(3) thereof and the Explanations Relating to the Charter as regards Article 11 — the same meaning and scope as the freedom guaranteed by the Convention, it must be held that that freedom covers the use by a business, on the packaging and labelling of tobacco products, of indications such as those covered by Article 13(1) of Directive 2014/40 (judgment in Neptune Distribution, C‑157/14, EU:C:2015:823, paragraphs 64 and 65).
- In that regard, the Court finds, first, that the interference identified in paragraph 148 of this judgment must be regarded as being provided for by law given that it results from a provision adopted by the EU legislature.
- Secondly, the essence of a business’s freedom of expression and information is not affected by Article 13(1) of Directive 2014/40 inasmuch as that provision, far from prohibiting the communication of all information about the product, merely controls, in a very clearly defined area, the labelling of those products by prohibiting only the inclusion of certain elements and features (see, by analogy, judgments in Deutsches Weintor, C‑544/10, EU:C:2012:526, paragraph 57, and Neptune Distribution, C‑157/14, EU:C:2015:823, paragraph 71).
- Thirdly, the interference with the freedom of expression and information that has been found to exist meets an objective of general interest recognised by the European Union, namely, the protection of health. Given that it is undisputed that tobacco consumption and exposure to tobacco smoke are causes of death, disease and disability, the prohibition laid down in Article 13(1) of Directive 2014/40 contributes to the achievement of that objective in that it is intended to prevent the promotion of tobacco products and incitements to use them.
- Fourthly, as regards the proportionality of the interference found, it is important to point out that the second sentence of Article 35 of the Charter and Articles 9 TFEU, 114(3) TFEU and 168(1) TFEU require that a high level of human health protection be ensured in the definition and implementation of all the Union’s policies and activities.
- Those elements show that the EU legislature weighed up, on the one hand, the economic consequences of that prohibition and, on the other, the requirement to ensure, in accordance with the second sentence of Article 35 of the Charter and Articles 9 TFEU, 114(3) TFEU and 168(1) TFEU, a high level of human health protection with regard to a product which is characterised by properties that are carcinogenic, mutagenic and toxic to reproduction. The impact of the prohibition laid down in Article 7 of Directive 2014/40 thus does not appear manifestly disproportionate.