- The extensive standardisation of packaging,
- The future EU-wide prohibition on menthol cigarettes and
- The special rules for electronic cigarettes.
Special rules for electronic cigarettes
The CJEU notes that electronic cigarettes display different objective characteristics from those of tobacco products and considers that electronic cigarettes do not have the same legal regime than other tobacco products. According to the text, the regime applied to e-cigarettes “is less strict than the one applicable to the other tobacco products”:
- Submission by manufacturers and importers of a notification to the national authorities for any product they wish to place on the market (with a six-month standstill period),
- Specific warnings,
- Maximum nicotine content of 20 mg/ml,
- Leaflet requirement,
- Separate prohibition on advertising and sponsorship and
- Annual reporting obligations.
The EU legislature has not infringed the principle of equal treatment
The Court justifies its position by adding that the national provisions governing the conditions which those products must satisfy are liable, in the absence of harmonisation at Union level, to constitute obstacles to the free movement of goods in an exploding market for electronic cigarettes and refill containers.
The free movement of goods and the smooth functioning of the internal market for tobacco and related products is precisely a priority of the EU Commission, as recalled by the advocate general Kokott.
The legislature acts in agreement with the precautionary principle
By allowing the Member States to prohibit the cross-border distance sales of electronic cigarettes and refill containers and by imposing certain common rules on the Member States which do not prohibit those sales, the directive enables the Member States to ensure that the rules on conformity are not circumvented.
Submitting electronic cigarettes to a notification scheme does not seem manifestly inappropriate or manifestly beyond what is necessary to attain the objective pursued by the EU legislature.
The Court rejects the argument that the obligation on manufacturers and importers of electronic cigarettes and refill containers to submit each year, to the competent authorities of the Member States, certain data enabling those authorities to monitor the development of the market infringes the principles of proportionality and legal certainty.
The legislature has not acted arbitrarily
By fixing the maximum nicotine yield which may be contained in the liquid of electronic cigarettes at 20 mg/ml, the legislature has not acted arbitrarily or manifestly exceeded the limits of what was appropriate and necessary in order to achieve the objective pursued by the directive.
The Court further holds that it is not disproportionate:
- to require the unit packages of electronic cigarettes and refill containers to contain a separate leaflet,
- to prohibit commercial communications and sponsorship for electronic cigarettes and refill containers.
In addition, the prohibition imposed on economic operators of promoting their products does not affect the essence of the freedom to conduct a business and the property right recognised by the Charter of Fundamental Rights of the European Union.
No infringement of the principle of subsidiarity
The Court holds, lastly, that the special rules applicable to electronic cigarettes do not infringe the principle of subsidiarity. In the same judgment, the Court also holds that dismissing Poland and Romania’s action against the prohibition of menthol cigarettes does not constitute an infringement of the principle of subsidiarity.
It is further considered that menthol and other flavors contribute to initiate tobacco consumption and sustain tobacco use. Therefore, the Court estimates lawful for the EU legislature to impose such prohibition to protect the youth. The measures that the Polish government recommends are not sufficient, according to the judges, to achieve the objective pursued by the EU under the WHO Framework Convention on Tobacco Control.
Hence, raising the age limit, prohibiting the cross-border sale of flavored tobacco products, including a health warning on the labelling stating that flavored tobacco products are as harmful to health as other tobacco products, are not likely to reduce the attractiveness of those products and thus prevent persons above that age from starting smoking.