• In the case of Case C-547/14 Philip Morris v Secretary of State for Health [4 May 2016], it was established that measures of partial harmonisation of Community law in national law shall be competent under Article 114 TFEU.

Facts of Case C-547/14 Philip Morris v Secretary of State for Health [4 May 2016]

  • Tobacco Products Directive, Directive 2014/40/EU, was a revised Directive which provided a wide range of restrictions in respect of restrictions concerning tobacco packaging, flavours, and e-cigarettes
  • It is also permitted Member States to introduce further restrictions and requirements, going beyond the ones set out in the Directive
  • The Cs sought judicial review concerning the implementation of the Directive, challenging its validity
  • The High Court of Justice in England sought a preliminary ruling on the Directive’s validity

Issues in Case C-547/14 Philip Morris v Secretary of State for Health [4 May 2016]

  • Was the Directive valid, or did it go too far?

Held by the European Court of Justice

  • The challenge of validity dismissed, the Directive was valid.

Findings of the Court

The request for a preliminary ruling was admissible:

  • “the opportunity open to individuals to plead the invalidity of an EU act of general application before national courts is not conditional upon that act actually having been the subject of implementing measures adopted pursuant to national law. In that respect, it is sufficient if the national court is called upon to hear a genuine dispute in which the question of the validity of such an act is raised indirectly. That condition is fulfilled in the case of the main proceedings” [35]

Article 114 concerns measures adopted by Parliament and the Council “for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market” [57]

In respect of this, the CJEU found that the Directive fell within the Article – providing a legal basis for the Directive:

  • “Article 114 TFEU as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade as a result of divergences in national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them” [59]
  • As per the Article, there are disparities present in the labelling of tobacco products, particularly health warnings, and such are “liable to constitute a barrier to trade and to impede the smooth functioning of the internal market in tobacco products”, no action from the Union would increase these differences [23-24]
  • “Article 7 of the directive seeks to eliminate disparities existing in that respect between the rules of the Member States, in order, in particular, to ensure the free movement of tobacco products in general” [94]

The Directive can be challenged if it is disproportionate – the CJEU did not find it to be so:

  • “the allegedly disproportionate effects of the prohibition on the use of menthol as a characterising flavour because of the negative economic and social consequences that such a prohibition entails, it should be borne in mind that even though, as in the present case, the EU legislature has a broad legislative power, it must base its choice on objective criteria and examine whether objectives pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators” [185]
  • “In the present case, the EU legislature made sure that the negative economic and social consequences of the prohibition on the placing on the market of tobacco products with a characterising flavour were limited” [187]

The principle of subsidiarity was complied with:

  • “Directive 2014/40 has two objectives in that it seeks to facilitate the smooth functioning of the internal market for tobacco and related products, while ensuring a high level of protection of human health, especially for young people.” [220]
  • Whilst the second objective may be better achieved at State level, there may be differences created between States, “thus running completely counter to the first objective of Directive 2014/40” [221]

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