Pro Rauchfrei eV v JS e.K (C-370/20)

Contents

Judgment of the Court (Fourth Chamber)9 December 2021^note(Reference for a preliminary ruling — Manufacture, presentation and sale of tobacco products — Directive 2014/40/EU — Labelling and packaging — Article 8(8) — Health warnings which must appear on each unit packet of a tobacco product and any outside packaging — Automatic vending machine for cigarette packets — Health warnings not visible from the outside — Representation of unit packets — Concept of images of unit packets and any outside packaging targeting consumers in the European Union)In Case C‑370/20,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 25 June 2020, received at the Court on 7 August 2020, in the proceedingsPro Rauchfrei eVvJS e.K.,THE COURT (Fourth Chamber),composed of K. Jürimäe, President of the Third Chamber, acting as President of the Fourth Chamber, S. Rodin (Rapporteur) and N. Piçarra, Judges,Advocate General: E. Tanchev,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– JS e.K., by A. Meisterernst, Rechtsanwalt,– the European Commission, by C. Hödlmayr and I. Rubene, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 15 July 2021,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 8(3) and (8) of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 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 and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1).

2The request has been made in proceedings between Pro Rauchfrei eV and JS e.K. concerning the use, by the latter, of automatic vending machines for cigarette packets which have the effect of hiding the health warnings that appear on the cigarette packaging from the consumer.

Legal context

3Recitals 21 to 24 of Directive 2014/40 state:(21) In line with the purposes of this Directive, namely to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of health protection, especially for young people, and in line with [Council Recommendation 2003/54/EC of 2 December 2002 on the prevention of smoking and on initiatives to improve tobacco control (OJ 2003 L 22, p. 31)], Member States should be encouraged to prevent sales of such products to children and adolescents, by adopting appropriate measures that lay down and enforce age limits.(22) Disparities still exist between national provisions regarding the labelling of tobacco products, in particular with regard to the use of combined health warnings consisting of a picture and a text, information on cessation services and promotional elements in and on unit packets.(23) Such disparities are liable to constitute a barrier to trade and to impede the smooth functioning of the internal market in tobacco products, and should, therefore, be eliminated. Also, it is possible that consumers in some Member States are better informed about the health risks of tobacco products than consumers in other Member States. Without further action at Union level, the existing disparities are likely to increase in the coming years.(24) Adaptation of the provisions on labelling is also necessary to align the rules that apply at Union level to international developments. For example, the [World Health Organisation Framework Convention on Tobacco Control] guidelines on the packaging and labelling of tobacco products call for large picture warnings on both principal display areas, mandatory cessation information and strict rules on misleading information. The provisions on misleading information will complement the general ban on misleading business to consumer commercial practices laid down in [Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22) (“Unfair Commercial Practices Directive”)].’

4Article 1 of that directive, entitled ‘Subject matter’, provides:‘The objective of this Directive is to approximate the laws, regulations and administrative provisions of the Member States concerning:…(b) certain aspects of the labelling and packaging of tobacco products including the health warnings to appear on unit packets of tobacco products and any outside packaging as well as traceability and security features that are applied to tobacco products to ensure their compliance with this Directive;…in order to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people, and to meet the obligations of the Union under the [World Health Organisation Framework Convention for Tobacco Control].’

5Under Article 2 of that directive, entitled ‘Definitions’:‘For the purposes of this Directive, the following definitions shall apply:…(33) “combined health warning” means a health warning consisting of a combination of a text warning and a corresponding photograph or illustration, as provided for in this Directive;…(40) “placing on the market” means to make products, irrespective of their place of manufacture, available to consumers located in the Union, with or without payment, including by means of distance sale; ……’

6Title II of that directive, entitled ‘Tobacco products’, contains Chapter II, entitled ‘Labelling and packaging’. Article 8 of Directive 2014/40, which appears in that chapter and which is entitled ‘General provisions’, provides, in paragraphs 1, 3 and 8 thereof:1. Each unit packet of a tobacco product and any outside packaging shall carry the health warnings provided for in this Chapter in the official language or languages of the Member State where the product is placed on the market.…3. Member States shall ensure that the health warnings on a unit packet and any outside packaging are irremovably printed, indelible and fully visible, including not being partially or totally hidden or interrupted by tax stamps, price marks, security features, wrappers, jackets, boxes, or other items, when tobacco products are placed on the market. On unit packets of tobacco products other than cigarettes and roll-your-own tobacco in pouches, the health warnings may be affixed by means of stickers, provided that such stickers are irremovable. The health warnings shall remain intact when opening the unit packet other than packets with a flip-top lid, where the health warnings may be split when opening the packet, but only in a manner that ensures the graphical integrity and visibility of the text, photographs and cessation information.…8. Images of unit packets and any outside packaging targeting consumers in the Union shall comply with the provisions of this chapter.’

7Article 10 of that directive, entitled ‘Combined health warnings for tobacco products for smoking’, provides, in paragraph 1 thereof:‘Each unit packet and any outside packaging of tobacco products for smoking shall carry combined health warnings. The combined health warnings shall:(a) contain one of the text warnings listed in Annex I and a corresponding colour photograph specified in the picture library in Annex II [entitled “Picture Library (of combined health warnings)”]’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8JS, which manages two supermarkets located in Munich (Germany), installed, on 20 May 2017, automatic vending machines for cigarette packets at the checkout points in those supermarkets. The packets of cigarettes were stored inside those machines, with the result that they were not visible to customers. While it is true that the selection buttons on those vending machines made it possible to identify different brands of cigarettes with a graphical representation, they did not, however, display the health warnings prescribed by law.

9In order to buy a packet of cigarettes, the customer had to ask the checkout staff to enable the vending machine. He or she then had to press the button corresponding to the selected packet of cigarettes, which was subsequently sent directly to the checkout conveyor belt to enable the customer to pay for it.

10Pro Rauchfrei is a non-profit association which defends the rights of passive smokers. It brought an action before the Landgericht München I (Regional Court, Munich I, Germany), seeking an injunction to prohibit JS from offering tobacco products, in particular cigarettes, by means of a device whose effect is to hide the health warnings that appear on the unit packets and any outside packaging of tobacco products from the consumer at the time those products are offered for sale. In the alternative, it requested that JS be prohibited from offering such products by means of a device which depicts only the image of unit packets of cigarettes, without the health warnings that must appear on them.

11The Landgericht München I (Regional Court, Munich I) dismissed that action.

12Pro Rauchfrei brought an appeal against that decision before the Oberlandesgericht München (Higher Regional Court, Munich, Germany), which also dismissed the case. In those circumstances, Pro Rauchfrei decided to bring an appeal on a point of law (Revision) against that judgment before the referring court, the Bundesgerichtshof (Federal Court of Justice, Germany).

13The referring court considers that the outcome of that appeal on a point of law depends on the interpretation of the first sentence of Article 8(3) of Directive 2014/40, as well as Article 8(8) thereof.

14With respect to the first sentence of Article 8(3) of Directive 2014/40, the referring court expresses doubts as to the meaning of the concept of ‘placing on the market’ and as to the scope of the prohibition on warnings being hidden by ‘other items’ laid down by that provision.

15As regards Article 8(8) of Directive 2014/40, that court is uncertain whether the concept of ‘images of unit packets’, within the meaning of that provision, covers graphical representations such as those affixed to the buttons of those automatic vending machines. It also asks whether, if necessary, the requirements of that article are met where, before completing his or her purchase, the consumer obtains from the vending machine a unit packet that includes the warnings prescribed by law. The consumer may, according to that court, associate a graphical representation which appears on the automatic vending machine, such as that at issue in the main proceedings, with a unit packet on account of its design in terms of outline, proportions, colour and brand logo, even if that image is not a faithful depiction of the original packaging,. However, once the automatic vending machine has dispensed the packet of cigarettes to the consumer, he or she has an opportunity, prior to the conclusion of the contract of sale, to examine that packet and take note of the health warnings prescribed by law.

16In those circumstances the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Does the concept of “placing on the market” within the meaning of the first sentence of Article 8(3) of [Directive 2014/40] cover the offering of tobacco products via [automatic] vending machines in such a way that, although the cigarette packets contained in them display the warnings prescribed by law, the cigarette packets [are stocked in the machine in such a way that they are not initially visible] to the consumer, and the warnings on them become visible only when the customer operates the machine, which has previously been enabled by the cashier, and the cigarette packet is thus dispensed onto the checkout belt prior to the payment process?(2) Does the prohibition in the first sentence of Article 8(3) of [Directive 2014/40] on warnings being “hidden by other items” cover the case in which the entire tobacco packaging is hidden when the goods are presented by an automatic vending machine?(3) Is the criterion of “images of unit packets” in Article 8(8) of [Directive 2014/40] satisfied even if an image is not a faithful depiction of the original packaging, but the consumer associates the image with tobacco packaging on account of its design in terms of outline, proportions, colour and brand logo?(4) Are the requirements of Article 8(8) of [Directive 2014/40] [also satisfied if] the consumer has the opportunity to see the cigarette packaging with the prescribed warnings prior to the conclusion of the contract of sale, irrespective of the depiction used?’

Consideration of the questions referred

The third question

17By its third question, which it is appropriate to examine first, the referring court asks, in essence, whether Article 8(8) of Directive 2014/40 must be interpreted as meaning that images which are not faithful depictions of unit packets of cigarettes but which consumers associate with such unit packets on account of their design in terms of outline, proportions, colour and brand logo, constitute ‘images of unit packets’ within the meaning of that provision.

18Under Article 8(8) of Directive 2014/40, images of unit packets and any outside packaging of a tobacco product targeting consumers in the Union must comply with the provisions of Chapter II of Title II of that directive.

19Under Article 8(1) of Directive 2014/40, which forms part of Chapter II of Title II of that directive, each unit packet of a tobacco product and any outside packaging is to carry the health warnings provided for in that chapter in the official language or languages of the Member State where the product is placed on the market.

20Thus, it is clear from the wording of Article 8(8) of Directive 2014/40, read in conjunction with Article 8(1) thereof, that all images of unit packets and any outside packaging targeting consumers in the Union must carry the health warnings provided for by the provisions of Chapter II of Title II of Directive 2014/40.

21However, the concept of ‘images of unit packets’ is not defined in that article; nor is it defined in any other provision of that directive.

22In that regard, as the Advocate General observed in point 58 of his Opinion, in the absence of such a definition, the meaning and scope of terms must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (see, to that effect, judgment of 22 April 2021, Austrian Airlines, C‑826/19, EU:C:2021:318, paragraph 22 and the case-law cited).

23With respect to, first, the usual meaning of the concept of an ‘image’, the Advocate General pointed out, in point 59 of his Opinion, that that concept covers the imitation of the form of the object which it seeks to represent and not only faithful depictions of that object. It must be noted in that regard that the words used by the EU legislature, for example in the Spanish (‘imagen’), German (‘Bild’), English (‘image’), French (‘image’) or Polish (‘wygląd’) versions of Article 8(8) of Directive 2014/40 have, in those different languages, a meaning which extends to an imitation that reproduces the outline, proportions, colour and form of the object represented.

24It follows that the concept of an ‘image’, within the meaning of that article, must be understood as including faithful depictions of unit packets of tobacco products, but as not being limited to such depictions.

25Secondly, such an interpretation is supported by an analysis of the context of Article 8(8) of Directive 2014/40. It is apparent from the title of Annex II to that directive, ‘Picture Library (of combined health warnings)’, that the term ‘image’ includes combined health warnings which, according to their definition in Article 2(33) of that directive, are warnings which include not only photographs but also texts and illustrations. Therefore, that concept cannot be understood as referring exclusively to photographs of unit packets.

26Thirdly, a broad interpretation of the concept of ‘images of unit packets’ within the meaning of Article 8(8) of Directive 2014/40, covering not only faithful depictions of unit packets but also the images which consumers associate with such unit packets, is consistent with the objectives of that directive and, in particular, the objective pursued by Article 8 thereof.

27Directive 2014/40 pursues a twofold objective, according to Article 1, namely to facilitate the smooth functioning of the internal market in tobacco and related products while taking as a base a high level of protection of human health, especially for young people (judgment of 30 January 2019, Planta Tabak, C‑220/17, EU:C:2019:76, paragraph 38 and the case-law cited). To that end, that directive seeks to approximate the laws, regulations and administrative provisions of the Member States concerning, inter alia, certain aspects of the labelling and packaging of tobacco products, including the health warnings which must appear on unit packets of tobacco products and any outside packaging as well as traceability and security features that are applied to tobacco products to ensure that the Member States comply with that directive.

28In addition, it should be observed, as the Advocate General did in point 63 of his Opinion, that Article 8(8) of Directive 2014/40 seeks, inter alia, to prevent circumvention of the rule set out in Article 8(1) of that directive, according to which each unit packet of a tobacco product must carry the health warnings prescribed by law. Article 8(3) of that directive ensures the effectiveness of that rule by prohibiting those warnings from being hidden or interrupted. Article 8(8) addresses, inter alia, the situation where a retailer seeks to avoid displaying the health warnings prescribed by law at the point of sale by instead displaying, in lieu of unit packets on which those warnings appear, images of those packets with the warnings removed. By requiring that the images of tobacco packaging also carry the health warnings prescribed by law, Article 8(8) of Directive 2014/40 thus seeks to prevent that situation, thereby ensuring, in a similar fashion to Article 8(3) of that directive, the effectiveness of the rule set out in Article 8(1) thereof.

29The health warnings provided for by the provisions of Chapter II of Title II of Directive 2014/40 are intended, inter alia, to better communicate the health risks posed by the consumption of tobacco products, to provoke a strong and lasting emotional response, and thus to increase the motivation of users of those products to quit and to decrease their tobacco consumption, in particular with regard to more vulnerable persons such as low-literacy populations, children and young people (see, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 204).

30As the referring court points out, an image which the consumer associates with a unit packet of tobacco products may, in the same way as a faithful depiction, trigger a desire to purchase, a desire which, however, the health warnings prescribed by law serve to discourage. It follows that a broad interpretation of the concept of ‘images of unit packets’ within the meaning of Article 8(8) of Directive 2014/40, which also extends to such an image, means that those health warnings must be affixed to those images, which contributes to the desired deterrent effect and thus to the protection of human health.

31The concept of ‘images of unit packets’, within the meaning of Article 8(8) of Directive 2014/40, must therefore be understood as covering the images that a consumer associates with such unit packets on account of their design in terms of outline, proportions, colour and brand logo. However, it is for the referring court to assess whether, in the case in the main proceedings, the images of cigarette brands displayed on the selection buttons of the automatic vending machines at issue in that case constitute images which a consumer associates with unit packets of tobacco products on account of their design.

32It follows from all the foregoing considerations that Article 8(8) of Directive 2014/40 must be interpreted as meaning that images which are not faithful depictions of unit packets of cigarettes but which consumers associate with such unit packets on account of their design in terms of outline, proportions, colour and brand logo constitute ‘images of unit packets’ within the meaning of that provision.

The fourth question

33By its fourth question, which it is appropriate to examine second, the referring court asks, in essence, whether Article 8(8) of Directive 2014/40 must be interpreted as meaning that an image of a packet of cigarettes which is covered by that provision but which does not carry the health warnings provided for in Chapter II of Title II of that directive is nevertheless compliant with that provision if the consumer has the opportunity to see those warnings on the packet of cigarettes corresponding to such an image before purchasing it.

34It should be recalled that, under Article 8(8) of Directive 2014/40, images of unit packets and any outside packaging targeting consumers in the Union must comply with the provisions of Chapter II of Title II of that directive and must therefore carry the health warnings referred to in paragraph 1 of that article.

35As the Advocate General observed in point 73 of his Opinion, that rule prohibits the use of images targeting consumers in the Union on which the health warnings prescribed by law do not appear, irrespective of any process for purchasing the products referred to by those images.

36Accordingly, the answer to the fourth question is that Article 8(8) of Directive 2014/40 must be interpreted as meaning that an image of a packet of cigarettes which is covered by that provision but which does not carry the health warnings provided for in Chapter II of Title II of that directive is not compliant with that provision, even if the consumer has the opportunity to see those warnings on the packet of cigarettes corresponding to such an image before purchasing it.

The first and second questions

37In view of the answer given to the third and fourth questions, there is no need to answer the first and second questions.

Costs

38Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fourth Chamber) hereby rules:

1.Article 8(8) of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 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 and repealing Directive 2001/37/EC must be interpreted as meaning that images which are not faithful depictions of unit packets of cigarettes but which consumers associate with such unit packets on account of their design in terms of outline, proportions, colour and brand logo constitute ‘images of unit packets’ within the meaning of that provision.

2.Article 8(8) of Directive 2014/40 must be interpreted as meaning that an image of a packet of cigarettes which is covered by that provision but which does not carry the health warnings provided for in Chapter II of Title II of that directive is not compliant with that provision, even if the consumer has the opportunity to see those warnings on the packet of cigarettes corresponding to such an image before purchasing it.