Continued requests of a preliminary ruling focusing of the Tobacco Products Directive, its articles, and its proposed issues.
Case C-220/17, that of Planta Tabak-Manufaktur Dr Manfred Obermann GmbH & Co KG v Land Berlin, hereafter Planta Tabak manufactures and Berlin respectively, was brought before the Court on request of a preliminary ruling which led to a sitting on 4 July 2018. This request was done though Article 267 TFEU from the Verwaltungsgericht Berlin (Administrative Court, Berlin, Germany). The hearing of the Opinion of the Advocate General issued its judgment on 30 January 2019.
Facts
This case concerned the validity of numerous articles of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 (hereafter Tobacco Products Directive or Directive), relating to definitions and terminology within the Tobacco Products Directive. The Directive is tasked with the regulation, manufacture, presentation and sale of tobacco and related products within the EU.
Planta Tabak produces and markets tobacco products. particularly flavoured roll-your-own tobacco. Planta Tabak sought a declaration on Gesetz über Tabakerzeugnisse und verwandte Erzeugnisse (hereafter the TabakerzG), the domestic implementation (ie domestic tobacco legislation) of the Tobacco Products Directive. Planta Tabak challenged the TabakerzG on three issues: (a) prohibition of flavourings; (b) the requirement of shock photographs; and (c) prohibition of advertising of flavouring. Planta Tabak questioned whether the items it produced could be understood as a “product category”, in addition to arguing that the term “product category” itself was not defined by the Directive.Footnote 1 Additionally, Planta Tabak argued that numerous articles of the Directive infringed the principles of legal certainty, equal treatment, and proportionality. The principle of legal certainty was raised in relation to prohibitions on: (a) products with characterising flavour; and (b) with EU-wide sales volume of less than 3%, and Planta Tabak’s concern on collecting such information. The principle of equal treatment was raised in relation to the differentiation of flavoured tobacco products by sale volume. Finally, the principle of proportionality was raised in relation to the period needed to plan and order new packaging to meet the timeline of the Directive.
Judgment
In this judgment the Court of Justice (the Court) recapitulated its previous jurisprudence on tobacco products, resulting in a judgment that was similar to others in the past. The Court found that there was nothing raised to affect the validity of the Directive with regard to any of the general principles of EU law at issue. Certain concerns raised about the interpretations of the Directive as defined within domestic (ie German) legislation were found to lack validity. The Court’s strong rebuttal had reference to previous judgments, such as Pillbox, Philp Morris Brands, etc, noting that manufacturers choose a reliable method of compliance,Footnote 2 that flavourings have the objective of initiating tobacco consumption and sustaining tobacco use,Footnote 3 and prohibitions are proportionate insomuch as they do not go beyond what is necessary to meet the objectives of general interest.Footnote 4
In particular, the Court noted, as they did in in Philip Morris Brands and Others,Footnote 5 that the use of flavourings – be they menthol or other flavourings – can contribute to the initiation and sustenance of tobacco consumption. The Court remarked that Article 13 of the Directive required Member States to limit that information regardless of the intention of the manufactures. Any challenge to the suggestion that flavourings were “traditional” (ie referring to mentholated tobacco product) and that such perception of the product should therefore lead to relaxed rules regarding it had already been rejected in Poland v Parliament & Council.Footnote 6 It was determined by the Court that prohibition of flavoured products was appropriate within the scope of the internal market for tobacco and related products, and ensured the “high level of protection of human health, especially for young people”.Footnote 7 The importance of the protection of the health of citizens from tobacco-related harm was re-emphasised.
The argument that the term “product category” within the Directive was not adequately defined was strongly refuted by the Court, which noted that not only were cigarettes and roll-your-own tobacco products referenced by name, but also that both fell within the interpretation of “product category”.Footnote 8 Furthermore, the Court insisted that the term “product category” should not be viewed differently in different parts of the Directive. Doing so would be at odds with the principle that identical terms used in the same EU act may be presumed to have the same meaning.Footnote 9
Comment
This case highlights the continuing attention devoted by tobacco manufacturers to challenging the Tobacco Products Directive. Taken in context with cases previously presented to the CJEU, there appears to be a pattern of intent from tobacco manufacturers. Their arguments across the case law seek to do two things: first, to challenge the prohibition of various aspects of promotion; and second to challenge the definitional aspects of the Directive. This is despite there being little question as to the impact of tobacco product usage on health on individuals and society.Footnote 10 The CJEU has made clear across the case law that they will prioritise health concerns. Information regulation had previously been judged in R v Secretary of State for Health, ex p British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd Footnote 11 to effectively discourage the harmful effects of tobacco products,Footnote 12 and in Poland v Parliament and Council and Philip Morris Brands and Others the Court found that there was a balance struck between economic consequences and protections of human health.Footnote 13 The World Health Organisation (WHO) has also noted clear links between tobacco usage and declining health.Footnote 14 The WHO even categorised tobacco usage as a specific hindrance to meeting sustainable health targets globally on an annual basis.Footnote 15
Therefore, the tobacco manufacturers do not now challenge the question of the health effects of tobacco products, but have repeatedly focused on perceived flaws in the Directive itself. The case as presented by Planta Tabak follows much the same focus and methodology, hinging on questioning the legal certainty of the Directive. It questioned possible “breach[es] of the principle of legal certainty because it requires Member States… [to change] the market … though it is not stated clearly and precisely which of those tobacco products are to be prohibited”Footnote 16 and the validity of Article 7(1) and (7) “… on the ground of breach of the principle of proportionality and/or infringement”.Footnote 17 Additionally, the mechanics of information prohibition relating to the products themselves, ie “prohibit the use of information … even where that information is not promotional information…” was suggested to overstep into non-promotional areas, limiting market reach.Footnote 18
The attention and consideration of such details may be found in another recent tobacco judgment, Swedish Match AB v Secretary of State for Health, in which tobacco manufacturers argued that aspects of the prohibition on the marketing of snuff products is disproportionate.Footnote 19 The Court in both judgments again relied heavily on previous tobacco cases and concluded generally that, despite the tobacco manufacturer’s objections as to the form of the Directive, the measures contained within it are proportionate to the objective of protecting public health.Footnote 20
These recent tobacco judgments raise the issue of whether domestic courts should now be able to rule independently on the legitimacy of the Tobacco Products Directive. The CJEU must clarify vagueness in EU legislation in the event of uncertainty on the part of the national court, but made clear in Srl CILFIT v Ministry of Health that national courts are not obliged to seek such clarification if the “community provision in question has already been interpreted by the Court of Justice or that the correct application of community law is so obvious as to leave no scope for any reasonable doubt”.Footnote 21 This is important because cases are often brought by collections of tobacco manufactures acting with common purpose. The CJEU is limited by time and funding – if recent tobacco judgment are handed down simply to reaffirm the legality of Directive successfully enacted four years ago, on the same or very similar issues that have previously been affirmatively answered, perhaps we could question whether domestic courts always need clarification on the interpretation of the legality of the Directive?
The issues raised in Planta Tabak before the national court, and referred to the CJEU, have been raised and answered in several jurisdictions within the EU. Yet another challenge to Article 13 of the Directive is currently underway in Fédération des fabricants de cigares v Premier ministre, Ministre des Solidarités et de la Santé.Footnote 22 If the judgment given in that case does not differ from that given in Planta Tabak or its predecessors, not only should national courts start to question the necessity of making a reference to the CJEU on issues of legality of the Tobacco Products Directive, but perhaps they should also start to look more critically upon the intentions of tobacco manufacturers in relying upon EU law to achieve commercial objectives.