Key facts of the case
Request for a preliminary ruling from the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court).
Reference for a preliminary ruling — Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40/EU — Article 1(c) and Article 17 — Prohibition on the placing on the market of tobacco products for oral use — Validity.
Outcome of the case
On those grounds, the Court (First Chamber) hereby rules:
Consideration of the question referred has disclosed nothing capable of affecting the validity of Article 1(c) and Article 17 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.
18) As a party granted leave to intervene in the main proceedings, the New Nicotine Alliance (‘NNA’), a registered charity whose objective is to promote public health by means of tobacco harm reduction, claims before the referring court that the prohibition on the placing of tobacco products for oral use on the market is contrary to the principle of proportionality and is in breach of Articles 1, 7 and 35 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Such a prohibition is an unsuitable means of achieving the objective of public health protection, since it deprives consumers who want to avoid the consumption of cigarettes and other tobacco products for smoking of the option of using a less toxic product, as shown by the success of electronic cigarettes and the scientific evidence on the harmful effects of tobacco in Sweden. Snus forms part, together with other tobacco harm reduction products, already available in the United Kingdom, of a coherent tobacco harm reduction strategy.
19) In those circumstances, the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (United Kingdom), decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Are [Article 1(c) and Article 17] of Directive [2014/40] invalid by reason of:
i. breach of the EU general principle of non-discrimination;
ii. breach of the EU general principle of proportionality;
iii. breach of Article 5(3) TEU and the EU principle of subsidiarity;
iv. breach of [the second paragraph of Article 296 TFEU];
v. breach of Articles 34 and 35 TFEU; and
vi. breach of Articles 1, 7 and 35 of [the Charter]?’
20) By the question referred for a preliminary ruling, the referring court raises the issue of the validity of Article 1(c) and Article 17 of Directive 2014/40, having regard to the principles of equal treatment, proportionality and subsidiarity, the obligation to state reasons laid down in the second paragraph of Article 296 TFEU, Articles 34 and 35 TFEU and Articles 1, 7 and 35 of the Charter.
86) It is apparent from the order for reference that Swedish Match and the NNA claim that Article 1(c) and Article 17 of Directive 2014/40 are in breach of Articles 1, 7 and 35 of the Charter, since the effect of the prohibition on the placing on the market of tobacco products for oral use is that individuals who want to stop smoking cannot use products that would improve their health.
87) In that regard, Article 52(1) of the Charter provides that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and must respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
91) In those circumstances, it must be held that Article 1(c) and Article 17 of Directive 2014/40 are not invalid having regard to Articles 1, 7 and 35 of the Charter.