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On 4 May 2016, the European Court of Justice (ECJ) rendered three judgments on the validity affirming Directive 2014/40 concerning the manufacture, presentation and sale of tobacco and related products. Of these cases, Poland v Parliament and Council was an annulment action about the prohibition on marketing of menthol cigarettes. The remaining two were preliminary references from the UK: Pillbox 38 was about the restrictions on the advertising and marketing of electronic cigarettes, and Phillip Morris was about various issues, including compliance with the freedom of expression under the Charter of Fundamental Rights, as well as the right of Member States to introduce further requirements. None of these judgments was rendered by the Grand Chamber.
The practical implications of the judgments will be visible for all to see. For instance, following the expiry of the deadline for the implementation of the Tobacco Products Directive on 20 May 2016, tobacco packs have to include large and mandatory health warnings and pictures alerting consumers to the dangers of smoking. The marketing of cigarettes of characterizing flavours (such as menthol of vanilla) is also banned.
The recent judgments rejected all the arguments against the validity of the Tobacco Products Directive. In doing so, they stressed the discretion that art.114 TFEU confers on the EU's legislature regarding the most appropriate method to harmonise in areas with complex technical features. They follow, therefore, the Court's previous case-law on harmonisation and apply it in the context of legislation which, whilst controversial, is ill-suited for a more interventionist approach by the judiciary. Take, for instance, the case of electronic cigarettes. Article 20 of the Directive imposes heavy restrictions on their advertising and a notification requirement related, amongst others, to their components and manufacturing. The scientific community is deeply divided on the merits and pitfalls of the use of e-cigarettes. Against this context, an interference by the Court with the substantive policy choice of the EU legislature to impose restrictions would have amounted to an extraordinary and unwarranted display of activism.
This recent case-law on tobacco harmonization is characterized by three noteworthy features. First, there is considerable emphasis on art.114(3) TFEU and the requirement that any proposals concerning health should "take as a base a high level of protection". Coupled with the discretion of the Union's institutions as to how to harmonise in the single market, this provision is relied upon by the Court in order to justify a deferential approach to the policy choices underpinning the Directive.
