Case C-210/03

Swedish Match AB and Swedish Match UK Ltd

v

Secretary of State for Health

(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court))

(Directive 2001/37/EC – Manufacture, presentation and sale of tobacco products – Article 8 – Prohibition of placing on the market of tobacco products for oral use – Validity – Interpretation of Articles 28 EC to 30 EC – Compatibility of national legislation laying down the same prohibition)

Summary of the Judgment

1. Approximation of laws – Manufacture, presentation and sale of tobacco products – Directive 2001/37 – Legal basis – Article 95 EC – Improvement of the conditions for the functioning of the internal market – Prohibition of marketing tobacco products for oral use – Included

(Art. 95 EC; European Parliament and Council Directive 2001/37, Art. 8)

2. Acts of the institutions – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Legal basis – Incorrect reference to Article 133 EC as a second legal basis – No effect on the validity of the directive

(Arts 95 EC and 133 EC; European Parliament and Council Directive 2001/37)

3. Approximation of laws – Manufacture, presentation and sale of tobacco products – Directive 2001/37 – Harmonising measures – Prohibition of marketing tobacco products for oral use – No breach of the principle of proportionality

(European Parliament and Council Directive 2001/37, Art. 8)

4. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Prohibition of marketing tobacco products for oral use – Justification – Protection of public health

(Arts 28 EC, 29 EC and 30 EC; European Parliament and Council Directive 2001/37, Art. 8)

5. Acts of the institutions – Statement of reasons – Obligation – Extent – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Provision prohibiting the marketing of tobacco products for oral use

(Art. 253 EC)

6. Approximation of laws – Manufacture, presentation and sale of tobacco products – Directive 2001/37 – Harmonising measures – Prohibition of marketing tobacco products for oral use – No breach of the principle of non-discrimination

(European Parliament and Council Directive 2001/37, Art. 8)

7. Community law – Principles – Fundamental rights – Freedom to pursue an occupation – Restriction in connection with the protection of public health – Directive 2001/37 concerning the manufacture, presentation and sale of tobacco products – Prohibition of marketing tobacco products for oral use – Permitted

(European Parliament and Council Directive 2001/37, Art. 8)

8. Approximation of laws – Manufacture, presentation and sale of tobacco products – Directive 2001/37 – Legal basis – Article 95 EC – No misuse of powers

(Art. 95 EC; European Parliament and Council Directive 2001/37)

9. Approximation of laws – Manufacture, presentation and sale of tobacco products – Directive 2001/37 – National legislation prohibiting the marketing of tobacco products for oral use – Complete harmonisation – No obligation to ascertain whether that legislation complies with Articles 28 EC and 29 EC

(Arts 28 EC and 29 EC; European Parliament and Council Directive 2001/37, Art. 8)

1. The prohibition of the marketing of tobacco products for oral use in Article 8 of Directive 2001/37 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products could be adopted on the basis of Article 95 EC. That provision authorises the Community legislature to intervene by adopting appropriate measures, in compliance with Article 95(3) EC and with the legal principles mentioned in the Treaty or identified in the case-law, in particular the principle of proportionality. Having regard to the public’s growing awareness of the dangers to health of the consumption of tobacco products, it is likely that obstacles to the free movement of those products would arise by reason of the adoption by the Member States of new rules reflecting that development and intended more effectively to discourage consumption of those products.

(see paras 33, 39, 42)

2. Article 95 EC constitutes the only appropriate legal basis for Directive 2001/37 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, and it is incorrect for it also to cite Article 133 EC as a legal basis.

However, that incorrect reference to Article 133 EC as a second legal basis for that directive does not of itself mean that the directive is invalid. Such an error in the citations of a Community act is no more than a purely formal defect, unless it gave rise to irregularity in the procedure applicable to the adoption of that act.

(see paras 43-44)

3. To satisfy its obligation to take as a base a high level of protection in health matters, in accordance with Article 95(3) EC, the Community legislature was able, without exceeding the limits of its discretion in the matter, to consider that a prohibition of the marketing of tobacco products for oral use such as that laid down in Article 8 of Directive 2001/37 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products was necessary. No other measures aimed at imposing technical standards on manufacturers in order to reduce the harmful effects of the product, or at regulating the labelling of packagings of the product and its conditions of sale, in particular to minors, would have the same preventive effect in terms of the protection of health, inasmuch as they would let a product which is in any event harmful gain a place in the market.

(see paras 56-57)

4. Even if the prohibition of marketing tobacco products for oral use under Article 8 of Directive 2001/37 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products constitutes a restriction referred to in Articles 28 EC and 29 EC, it is justified on grounds of the protection of human health, and cannot therefore be regarded as having been adopted in breach of the provisions of those articles.

(see para. 61)

5. Since Directive 2001/37 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products specifies, in the 28th recital in its preamble, that Directive 89/622 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products prohibited the sale in the Member States of certain types of tobacco for oral use and that Article 151 of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded granted the Kingdom of Sweden a derogation from the provisions of the latter directive, it does not appear that the confirmation of that prohibition in Article 8 of Directive 2001/37 required that directive to specify other relevant points of fact and law in order to satisfy the obligation to state reasons under Article 253 EC.

(see para. 68)

6. Although tobacco products for oral use, as defined in Article 2 of Directive 2001/37 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, are not fundamentally different in their composition or indeed their destination from tobacco products intended to be chewed, they were not in the same situation as those products at the time of adoption of the directive. Tobacco products for oral use were new to the markets of the Member States referred to in the prohibition of marketing in Article 8 of the directive. That particular situation thus authorised a difference in treatment of those products, and it cannot validly be argued that there was a breach of the principle of non-discrimination.

(see para. 71)

7. The freedom to pursue an occupation, like the right to property, is one of the general principles of Community law. Those principles are not absolute rights, however, but must be considered in relation to their social function. Consequently, restrictions may be imposed on the exercise of the freedom to pursue an occupation and on the exercise of the right of property, provided that the restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed.

In that respect, since Directive 2001/37 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products pursues an objective in the general interest by ensuring a high level of protection of health in the context of the harmonisation of the provisions applicable to the placing on the market of tobacco products, and the prohibition of the marketing of tobacco products for oral use laid down in Article 8 of that directive does not appear to be inappropriate to that objective, the obstacle to the freedom to pursue an economic activity constituted by a measure of such a kind cannot be regarded, in relation to the aim pursued, as a disproportionate interference with the exercise of that freedom or with the right to property.

(see paras 72, 74)

8. A measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.

That is not the case with Directive 2001/37 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, in particular Article 8 prohibiting the marketing of tobacco products for oral use. First, the conditions for recourse to Article 95 EC as legal basis of the directive are fulfilled, since it is intended to eliminate the barriers to trade connected with the heterogeneous development of national laws on tobacco products for oral use, and, second, it has not been shown that that provision was adopted with the exclusive or main purpose of achieving another objective.

(see paras 75, 77-78)

9. Since the marketing of tobacco products for oral use is a question that is regulated in a harmonised manner at Community level, where national legislation prohibits the marketing of those products in accordance with the provisions of Article 8 of Directive 2001/37 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, there is no need to ascertain separately whether that national measure complies with Articles 28 EC and 29 EC.

(see paras 82-83, operative part 2)

JUDGMENT OF THE COURT (Grand Chamber) 14 December 2004 (1)

(Directive 2001/37/EC – Manufacture, presentation and sale of tobacco products – Article 8 – Prohibition of placing on the market of tobacco products for oral use – Validity – Interpretation of Articles 28 EC to 30 EC – Compatibility of national legislation laying down the same prohibition)

In Case C-210/03,REFERENCE for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court), made by decision of 17 April 2003, received at the Court on 15 May 2003, in the proceedings

v

THE COURT (Grand Chamber),,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans and K. Lenaerts, Presidents of Chambers, C. Gulmann, J.-P. Puissochet, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

having regard to the written procedure and further to the hearing on 8 June 2004,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 7 September 2004,

gives the following

‘… new tobacco products for oral use which have appeared on the market in certain Member States are particularly attractive to young people and … the Member States most exposed to this problem have already placed total bans on these new tobacco products or intend so to do’.

‘… regarding such products, there are differences between the laws, regulations and administrative provisions of the Member States and … these products therefore need to be made subject to common rules’.

‘... there is a real risk that the new products for oral use will be used above all by young people, thus leading to nicotine addiction, unless restrictive measures are taken in time’.

‘… in accordance with the conclusions of the studies conducted by the International Agency for Research on Cancer, tobacco for oral use contains particularly large quantities of carcinogenic substances; … these new products cause cancer of the mouth in particular’.

‘… the sales bans on such tobacco already adopted by three Member States have a direct impact on the establishment and operation of the internal market; … it is therefore necessary to approximate Member States’ laws, regulations and administrative provisions in this area, taking as a base a high level of health protection; … the only appropriate measure is a total ban; … however, such a ban should not affect traditional tobacco products for oral use, which will remain subject to the provisions of Directive 89/622/EEC, as amended by this Directive, applicable to smokeless tobacco products’.

‘The Acts listed in Annex XV to this Act shall apply in respect of the new Member States under the conditions laid down in that Annex.’

…’

‘Directive 89/622/EEC prohibited the sale in the Member States of certain types of tobacco for oral use. Article 151 of the Act of Accession … grants the Kingdom of Sweden a derogation from the provisions of that Directive in this regard.’

‘For the purposes of this Directive:

…

…’

‘Tobacco products for oral use, where their marketing is permitted under Article 8, and smokeless tobacco products shall carry the following warning: “This tobacco product can damage your health and is addictive”.

…’

‘Member States shall prohibit the placing on the market of tobacco for oral use, without prejudice to Article 151 of the Act of Accession …’.

‘Member States may not, for considerations relating to the limitation of the tar, nicotine or carbon monoxide yields of cigarettes, to health warnings and other indications or to other requirements of this Directive, prohibit or restrict the import, sale or consumption of tobacco products which comply with this Directive, with the exception of measures taken for the purposes of verifying the data provided under Article 4.’

The choice of Articles 95 EC and 133 EC as legal bases

Article 95(3) EC and the principle of proportionality

Article 28 EC and/or Article 29 EC

Article 253 EC

The principle of non-discrimination

The principle of freedom to pursue a trade or profession and the right to property

Alleged misuse of powers

The answer to Question 2 taken as a whole

On those grounds, the Court (Grand Chamber) rules as follows:

Signatures.