How does Directive 2014/40/EU regulate tobacco products while maintaining the smooth functioning of the internal market and protecting public health?

Abstract

Given the evolution of scientific developments and findings, and the evolution of tobacco products in the market, the European Commission, Parliament and Council were consistently requested to take action in revising and updating the 2001 Tobacco Products Directive. The culmination of revision and updates were done through Directive 2014/40/EU, being transposed into Member States’ domestic legal systems in 2016. Maintaining the smooth functioning of the internal market and achieving a high level of protection of public health in particular for young persons are the foremost objectives behind the provisions found in Directive 2014/40/EU. The revised regime includes mandatory and larger health warnings of a combined nature, including both coloured photographs and textual warnings, while also providing for the prohibition of cigarettes with a characterising flavour in 2020, and providing for maximum amounts of cigarettes in unit packets, volume found in roll-your-own tobacco packets, and levels of nicotine in electronic cigarettes. Philip Morris Brands SARL, Poland, and Pillbox 38 (UK) Ltd, are three preliminary reference rulings in front of the Court of Justice of the European Union which contested Directive 2014/40/EU’s provisions in particular that its provisions go contrary to the principles of subsidiarity and proportionality thus making Article 114 of the Treaty on the Functioning of the European Union inadequate as a legal basis. However, in rendering interpretation of the new tobacco regulations consistent with the Treaty, they do run in parallel to proportionality and subsidiarity. Contesting the tobacco regulations as going against human rights, the protection of human health outweighs the former claim. Having also regard to Eurobarometers issued by the European Commission in 2012, 2015 and 2017 regard is given to how respondents perceive the new health warnings, while assessing the attitudes of Europeans towards tobacco products both before and after Directive 2014/40/EU.