No factors of such a kind as to affect the validity of Article 20 of Directive 2014/40 on the manufacture, presentation and sale of tobacco and related products
No infringement principle of equal treatment
42. Accordingly, it must be held that electronic cigarettes are not in the same situation as tobacco products for the purposes of the case-law cited in paragraph 35 of the present judgment.
43. Therefore, by submitting those cigarettes to a separate legal regime which is, moreover, less strict than the one applicable to tobacco products, the EU legislature cannot be said to have infringed the principle of equal treatment.
No infringement principle of proportionality and legal certainty
57 […]The impact assessment of 19 December 2012, drawn up by the Commission and accompanying the Proposal for a Directive of the European Parliament and of the Council 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 (SWD(2012) 452 final, Part 1, p. 26 et seq. and Part 4, p. 2), mentions the uncertainties surrounding the various national legal regimes applicable to electronic cigarettes. It follows in particular that some Member States tend to compare them on a case-by-case basis to medicinal products, whereas others prohibit them and others do not regulate them in any way.
58. However, taking into account the growing market for electronic cigarettes and refill containers, noted in both recital 43 of Directive 2014/40 and in the ENDS report, the national rules relating to the conditions which those products must satisfy are in themselves liable, in the absence of harmonisation at Union level, to constitute obstacles to the free movement of goods (see, by analogy, judgment in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 64).
60. Thirdly, the identified and potential risks linked to the use of electronic cigarettes, noted in the ENDS report and mentioned in paragraphs 52 and 53 of the present judgment, required the EU legislature to act in a manner consistent with the requirements stemming from the precautionary principle.
62. As regards, in the second place, the argument that Article 20 of Directive 2014/40 is contrary to the principle of proportionality owing to the fact that it submits electronic cigarettes and refill containers to comparable, or even stricter, rules than those reserved for tobacco products, it should be observed that, as is apparent from paragraphs 36 to 43 of the present judgment, the former products can be distinguished from the latter products by their objective characteristics and by their novelty on the market concerned, which justifies the application to them of specific rules.
65. However, the Court has already held in this regard that such an impact assessment is not binding on either the Parliament or the Council (judgment in Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 57). Consequently, the EU legislature remains free to adopt measures other than those which were the subject of that impact assessment. Therefore, the mere fact that it adopted a different and, as the case may be, more onerous measure than the measures envisaged by the Commission in the impact assessment referred to in paragraph 57 of the present judgment is not such as to demonstrate that it manifestly exceeded the limits of what was necessary in order to achieve the stated objective.
IPPT20160504, CJEU, Pillbox v Secretary of State for Health
C‑477/14 - ECLI:EU:C:2016:324
