By Oliver Bartlett (Liverpool Law School, Liverpool University)
On 23 December 2015, Advocate General Kokott delivered her Opinion in a number of cases related to the adoption of Directive 2014/40/EU, the long awaited and painstakingly-negotiated revision to the EU’s existing Tobacco Products Directive. One of those cases – Case C-547/14 Philip Morris Brands and Others – was referred by the English High Court to the Court of Justice for a preliminary ruling on the legitimacy of a large number of aspects of the new Directive. In this post, I would like to highlight a handful of interesting themes that characterise Advocate General Kokott’s Opinion in Philip Morris Brands, and speculate upon what these might indicate for the development of the EU’s tobacco control agenda.
Summary of the Opinion
The case in question was brought by a number of tobacco producers and was intended to question whether a number of aspects of Directive 2014/40/EU – herein ‘the Directive’ – could legitimately be adopted under the internal market competence granted by Article 114 TFEU. Tobacco Advertising 1 and Tobacco Advertising 2 lay down the well-known test that legislation adopted under Article 114 must ‘genuinely have as its object the improvement for the conditions for the establishment and functioning of the internal market’,[i] and be compatible with the principles of proportionality and subsidiarity, and is with fundamental rights.
The challengers alleged that several provisions of the Directive did not comply with the conditions for recourse to Article 114 as a legal basis, and were not compatible with proportionality, subsidiarity or fundamental rights. From the public health interest point, the following were the main elements of their challenge: first, they alleged that the ban on menthol flavourings in cigarettes was not capable of eliminating differences between Member State laws, and could not improve internal market conditions; second, they alleged that the Directive’s rules on packaging and labelling would not eliminate obstacles to trade; third, they alleged that provisions of the Directive allowing Member States to lay down stricter rules on packaging and certain categories of tobacco products goes against the purpose of Article 114, and would not lead to the removal of obstacles to trade but to the creation of new ones; fourth, that the ban on menthol flavourings and the rules on packaging and labelling were adopted disproportionately, and without due regard for the freedom to conduct a business and freedom of expression; lastly, that the Directive, and in particular the ban on menthol flavourings, was not adopted with sufficient regard for the principle of subsidiarity.
Advocate General Kokott described this legal action as ‘a kind of general onslaught’[ii] on the legitimacy of the Directive, and dismissed all of the tobacco producers’ arguments. Her response to the first allegation was that it was ‘clearly based on the misassumption that the Union legislature would have had the power under Article 114 TFEU to adopt rules on the use of menthol as a characterising flavour in tobacco products only if there had been differences between Member States’ rules specifically with regard to menthol cigarettes’[iii] and that ‘the doubts expressed by a number of participating undertakings … as to the existence of present or future differences between Member States’ laws … are all unfounded’.[iv]
In response to the second allegation, the AG made it clear that ‘an objective examination must always be made’[v] on whether a measure would remove obstacles to trade, and that the EU legislature could reasonably conclude that tobacco product manufacture ‘was increasingly being concentrated in a small number of production plants within the European Union, which naturally results in significant cross border trade and a greater need for Union-wide uniform rules’.[vi] The requirements of the WHO Framework Convention on Tobacco Control therefore ‘made it likely that the individual Member States would enact new, and presumably divergent, rules governing the labelling and packaging of tobacco products’.[vii]
In response to the third allegation, the AG argued for a narrow interpretation of the Directive, which would permit ‘the Member States to adopt ‘further rules’ only in so far as the Union legislature itself has not carried out any harmonisation’.[viii] She added that ‘if one were to follow the participating undertakings’ argument, the partial harmonisation of the Member States’ laws … pursued by Directive 2014/40 would be reinterpreted as full harmonisation’.[ix] Thus, ‘the Directive … permits the Member States to introduce “further requirements … in relation to the standardisation of the packaging” only in so far as there is no harmonisation by EU law’.[x] Furthermore, ‘unilateral national prohibitions of products which are covered by the Directive are permitted only in so far as the public health objective pursued at national level is not met adequately be the harmonisation measures in the Directive’.[xi]
In response to the fourth allegation, the AG reminds us that the EU has discretion in matters involving complex economic, social and political questions, and therefore the proportionality principle is infringed ‘only where the EU measure concerned is manifestly disproportionate’.[xii] The AG was clearly unconvinced that this threshold had been crossed at any point. For example, on the ban on menthol flavourings, the AG stated that ‘under no circumstances can a prohibition of characterising flavours – including menthol – in tobacco products be regarded a manifestly inappropriate for attaining the above mentioned objective [of achieving a high level of health protection]’,[xiii] and that ‘all in all, it was therefore perfectly justifiable – and in any case not manifestly disproportionate – for the Union legislature … to give precedence to the desired high level of health protection over economic and social considerations’.[xiv] These sentiments were echoed in respect of the rules on packaging and labelling. With respect to arguments on the freedom of expression, the AG added that ‘the essence of freedom of expression … is likewise not affected if commercial communications by undertakings which are intended solely to promote sales are restricted by an EU legislative act’.[xv]
Finally, in response to the final allegation, the AG simply said that the argument of the challengers ‘is not convincing simply because neither the Directive in general nor the contested prohibition on menthol cigarettes in particular was introduced purely on public health grounds. Rather, the aim is to remove obstacles to trade for tobacco products whilst at the same time ensuring a high level of health protection’.[xvi] Therefore, given that there is cross-border trade in tobacco products, appreciable differences in rules exist, and more can be expected, ‘the Union legislature cannot be accused of having committed a manifest error of assessment if it takes the view that there is a problem that has a cross-border dimension which cannot be resolved by action taken by the Member States alone’.[xvii]
In summary, the AG was unimpressed by the arguments made by the assembled tobacco producers and their supporters, and gave an Opinion, which not only supports the legitimacy of the EU’s ban on menthol cigarettes, but furthermore supports the legitimacy of any attempt by the Member States to introduce plain packaging for tobacco products under the terms of the Directive. The Opinion was characterised by a number of themes that are interesting form a public health perspective, which I now turn to analyse.
Shift in the analysis of Article 114 competence issues
The first noticeable theme in the AG’s Opinion is a shift in focus for the analysis of Article 114 TFEU. This is spelled out right at the beginning of the Opinion, when the AG says that ‘the suitability of Article 114 TFEU … as a legal basis no longer plays the central role it did in earlier years … interest is now focused on other legal questions, particularly in relation to the principle of proportionality and legal certainty’.[xviii] This statement reflects growing acceptance that the internal market harmonization competence is tool that EU public health policy makers can legitimately have recourse to.
This sentiment is echoed throughout the Opinion. The phrase ‘settled case-law’ is used in relation to Article 114 four times,[xix] and the phrase ‘recognised’ is used in relation to the same Article a further three times.[xx] The AG makes multiple references to the fact that the Court has decided once already that Article 114 consisted a suitable legal basis for the adoption of rules of tobacco products.[xxi] Finally, statements appear in the Opinion to the effect that certain parts of the tobacco producers’ argument are not really about establishing competence under Article 114: ‘this is in reality not a complaint of lack of competence, but a complaint regarding proportionality’.[xxii]
This all indicates that the questions of real legal interest in relation to Article 114 now relate to how the internal market competence can be used for public health purposes, and not whether it can be used. The lengthy discussion that the AG engages in on proportionality attests to this – an impressive 92 paragraphs, largely on the menthol ban and the rules on labeling and packaging – a whole two paragraphs more than the entire discussion on recourse to Article 114 as a legal basis.
This constitutes a step forward in tobacco control, and non-communicable disease control in general. Literature recognises that Article 114 is often used for public health purposes, when the EU’s specific public health powers prove insufficient, especially to resolve cross-border problems such as health harms caused by transnational trade in tobacco.[xxiii] This Opinion reflects a certain judicial weariness of continued challenge to the legitimacy of recourse to Article 114 for public health purposes, and a desire for the debate to move on to how this strategy is implemented.
Rejection of tobacco industry tactics and arguments
The second noticeable, and particularly welcome, theme of the AG’s Opinion is the consistent rejection of the legal tactics employed by the tobacco industry. Throughout the Opinion, the AG almost goes out of her way to make it plain that she does not agree with either the way in which the tobacco industry have gone about challenging this Directive, or the reasons lying behind such challenge.
For example, the AG writes that ‘there is suspicion that some undertakings are downplaying the existence of obstacles to trade in order to avoid Union-wide uniform regulation with more stringent health protection requirements’.[xxiv] She comments further that certain arguments of the tobacco industry are ‘probably fueled by the fear of some of the undertakings concerned that national rules will be adopted to introduce plain packaging’.[xxv] This line in particular highlights the distinctly perturbed nature of most legal action initiated by the tobacco industry, and indicates support for Member State intentions to adopt plain packaging rules under the Directive.[xxvi]
The Opinion reveals a clear lack of sympathy for the position of the tobacco industry. At one point the AG writes that ‘the fact that [a particular undertaking’s] view did not have the desired effectiveness from an objective point of view cannot be seriously regarded as an indication of a deficiency in the preparations for the legislative procedure’.[xxvii] At another point, she writes that ‘a number of undertakings taking part … object that smuggling will increase and the black market in menthol cigarettes will flourish. However, this is not more than a mere assertion, with little by way of substantiation’.[xxviii]
This stance is extremely welcome. The manipulative nature of the tobacco industry has been comprehensively documented by academics,[xxix] and NGOs.[xxx] Now it appears that judicial recognition of the nature of the tobacco industry is starting to materialise. This development could prove extremely helpful for tobacco control efforts, as judicial recognition and rejection of tobacco industry tactics might help to further insulate the policy-making process from tobacco industry influence – or at least better protect measures adopted from legal challenge.
Prominence of public health as a priority of the Treaties
The third noticeable theme is the recognition that public health protection is a priority objective sought by the EU Treaties. There are several points at which the AG argues for the legitimacy of the Directive by relying on the existence of the public health mainstreaming provisions, and openly declares that the objective of public health protection is more important than the protection of economic interests. The strongest example of this is in paragraph 179, where the AG says that ‘the protection of human health has considerably greater importance in the value system under EU law than such essentially economic interests … with the result that health protection may justify even substantial negative economic consequences for certain economic operators’. This is an unequivocal statement of the primacy of health protection over the interests of the tobacco industry.
Similar statements to this effect permeate the Opinion. For example: ‘the Union legislature has to be allowed a broad discretion in respect of the assessments underlying the Directive, not least with regard to the measures which are best able to achieve the high level of health protection prescribed in the European internal market’,[xxxi] and ‘it was perfectly reasonable and possibly even necessary … to lay down generally strict rules on the use of characterising flavours in tobacco products, especially since under primary law a high level of health protection was to be ensured’.[xxxii] Such strong judicial support for placing the objective of health protection over the economic interests of industries that produce health hazardous products can only be a good thing for public health policy in general, as statements such as the above are easily applicable to fields beyond tobacco control.
Not only did the AG confirm that the Treaties require interests to be balanced in favour of health protection, she also referred consistently to the WHO Framework Convention on Tobacco Control to support arguments for the legitimacy of the Directive. For instance, she recognises that ‘under the WHO Framework Convention on Tobacco Control the Union and its Member States were called upon to limit or prohibit the use in tobacco products of ingredients which may improve their taste’.[xxxiii] She adds that ‘the international context, in particular the requirements stemming from Article 11 of the WHO Framework Convention, made it likely that the individual Member States would enact new, and presumably divergent rules’.[xxxiv] The fact that the requirements of a public health treaty, rather than international trade norms, are being used to influence the interpretation of internal market law is a significant step forward for public health protection efforts – a step which makes good on previous calls to this effect from commentators.[xxxv]
In summary, the Opinion of AG Kokott in Philip Morris Brands is extremely welcome from a tobacco control and public health perspective. The judgment strongly supports the legitimacy of the Directive, and is dismissive of the stance of the tobacco industry. Many points about the tobacco industry and the status of public health objectives in EU primary law that academics and NGOs have been voicing for a long time appear in the text of the Opinion, which indicates that these points are gaining traction in the thought processes of the EU’s judicial institutions. It is to be fervently hoped that the sentiments of the Advocate General are adopted by the Court when it delivers its judgement. The implications for European level public health policy if it does could be momentous.
[i] Case C-376/98 Germany v Parliament and Council  ECLI:EU:C:2000:544, paragraph 84.
[ii] Opinion of Advocate General Kokott, delivered on 23 December 2015, in Case C-547/14 Philip Morris Brands and Others  ECLI:EU:C:2015:853.
[iii] Paragraph 63.
[iv] Paragraph 80.
[v] Paragraph 97.
[vi] Paragraph 97.
[vii] Paragraph 97.
[viii] Paragraph 110.
[ix] Paragraph 115.
[x] Paragraph 118.
[xi] Paragraph 127.
[xii] Paragraph 150 (emphasis in original).
[xiii] Paragraph 160 (emphasis in original).
[xiv] Paragraph 183.
[xv] Paragraph 236.
[xvi] Paragraph 280.
[xvii] Paragraph 284.
[xviii] Paragraph 3.
[xix] Paragraphs 61, 73, 94 and 142.
[xx] Paragraphs 82, 116 and 137.
[xxi] At paragraphs 101, 88-89.
[xxii] Paragraph 100.
[xxiii] See F Geber, ‘Between a rock and a hard place: the controversial case of legislative harmonization and national lifestyle policies’ in A Alemanno and A Garde (eds), Regulating Lifestyle Risks: The EU, Alcohol, Tobacco and Unhealthy Diets (Cambridge University Press 2015), 151.
[xxiv] Paragraph 96.
[xxv] Paragraph 114.
[xxvi] For an analysis of the potential adoption of plain packaging by the UK, see A Alemanno and A Garde, Legal Opinion on the Compatibility of the UK Proposals to Introduce Standardised Packaging on Tobacco Products within the EU Tobacco Products Directive (ASH 2015) available online at http://www.ash.org.uk/files/documents/ASH_955.pdf (last accessed 19 January 2015).
[xxvii] Paragraph 177.
[xxviii] Paragraph 84.
[xxix] See for example: M Neuman, A Bitton and S Glantz, ‘Tobacco industry strategies for influencing European Community tobacco advertising legislation’ (2002) 359 (9314) Lancet 1323; Y Saloojee and E Dagli, ‘Tobacco industry tactics for resisting public policy on health’ (2000)78(7) Bulletin of the World Health Organisation 902; R Malone, ‘The Tobacco Industry’ in W Wiist, The Bottom Line or Public Heatlh (OUP 2010) 155.
[xxx] See for example: EPHA, ‘Reaction to misleading tobacco industry statement – public health NGOs letter to the editor’ (epha.org, 29 September 2012) available online at http://www.epha.org/spip.php?article5311.
[xxxi] Paragraph 149.
[xxxii] Paragraph 159.
[xxxiii] Paragraph 75.
[xxxiv] Paragraph 97.
[xxxv] See for example: A Taylor and D Bettcher, ‘WHO Framework Convention on Tobacco Control: a global “good” for public health’ (2000) 78(7) Bulletin of the World Health Organisation 920.