Pro Rauchfrei eV v JS eK (C-356/22)

Contents

Judgment of the Court (Fifth Chamber)9 March 2023^note(Reference for a preliminary ruling — Manufacture, presentation and sale of tobacco products — Directive 2014/40/EU — Labelling and packaging — Article 2(40) — Concept of placing on the market — Article 8(3) — Health warnings to appear on each unit packet of a tobacco product and any outside packaging — Prohibition on hiding — Automatic vending machines for packets of cigarettes — Packets of cigarettes which are not visible from the outside)In Case C‑356/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 24 February 2022, received at the Court on 2 June 2022, in the proceedingsPro Rauchfrei eVvJS eK,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, D. Gratsias (Rapporteur), M. Ilešič, I. Jarukaitis and Z. Csehi, Judges,Advocate General: L. Medina,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– JS eK, by A. Meisterernst, Rechtsanwalt,– the European Commission, by E. Schmidt, F. van Schaik and H. van Vliet, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 8(3) 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 eK concerning the use, by JS, of automatic vending machines for packets of cigarettes which have the effect of hiding the health warnings that appear on cigarette packaging from the consumer.

Legal context

3Article 1 of Directive 2014/40, headed ‘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].’

4Under Article 2 of that directive, headed ‘Definitions’:‘For the purposes of this Directive, the following definitions shall apply:…(32) “health warning” means a warning concerning the adverse effects on human health of a product or other undesired consequences of its consumption, including text warnings, combined health warnings, general warnings and information messages, 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; ……’

5Title II of that directive, headed ‘Tobacco products’, contains a Chapter II, headed ‘Labelling and packaging’, which includes Article 8, headed ‘General provisions’. Paragraphs 1, 3 and 8 of that article provide: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.’

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

6JS, which manages two supermarkets located in Munich (Germany), installed, on 20 May 2017, automatic vending machines for packets of cigarettes at the checkout points in those supermarkets. The packets of cigarettes were stocked 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.

7In 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.

8Pro 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 for sale tobacco products, in particular cigarettes, in circumstances in which, at the time when the products are offered for sale, the health warnings appearing on the unit packets and on any outside packaging of the tobacco products are hidden as a result of the use of a machine such as the one described in paragraph 6 of the present judgment. In the alternative, Pro Rauchfrei requested that JS be prohibited from selling such products by means of a machine which depicts only the image of unit packets of cigarettes, without the health warnings that must appear on them.

9The Landgericht München I (Regional Court, Munich I) dismissed that action.

10Pro 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).

11That court took the view that the outcome of that action depended on the interpretation of the first sentence of Article 8(3) and Article 8(8) of Directive 2014/40 and made a reference to the Court of Justice for a preliminary ruling, registered as Case C‑370/20, in which it referred four questions to the Court for a preliminary ruling.

12In its judgment of 9 December 2021, Pro Rauchfrei (C‑370/20, EU:C:2021:988), the Court answered the third and fourth questions. It ruled, first, 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, and, second, that that provision 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.

13However, the Court found that, in view of the answer given to the third and fourth questions, there was no need to answer the first and second questions.

14In the request for a preliminary ruling which gave rise to the present case, the referring court states that the procedural rules governing the dispute in the main proceedings require it to observe the order of priority according to whether the heads of claims were submitted as principal heads of claim or heads of claim in the alternative. In so far as the merits of Pro Rauchfrei’s principal head of claim depend on the answer to the first and second questions, which the Court did not answer in the judgment of 9 December 2021, Pro Rauchfrei (C‑370/20, EU:C:2021:988) and the answers to the third and fourth questions are relevant only to the assessment of the merits of the head of claim put forward in the alternative by Pro Rauchfrei, an answer to those first and second questions is still necessary. The referring court has doubts as to the meaning of the concept of ‘placing on the market’, within the meaning of the first sentence of Article 8(3) of Directive 2014/40, and as to the scope of the prohibition on warnings being hidden by ‘other items’ as laid down by that provision.

15In 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 vending machines in such a way that, although the cigarette packets contained in them display the warnings prescribed by law, the cigarette packets are initially stocked in the machine in such a way that they are not 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/EU 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?’

Consideration of the questions referred

16As a preliminary point, the Court notes that, according to its settled case-law, the authority of a preliminary ruling does not preclude the national court or tribunal to which it is addressed from taking the view that it is necessary to make a further reference to the Court before giving judgment in the main proceedings, in particular where it submits to the Court new considerations which might lead it to give a different answer to a question submitted earlier (judgment of 6 March 2003, Kaba, C‑466/00, EU:C:2003:127, paragraph 39 and the case-law cited).

17It follows a fortiori that a national court to which a preliminary ruling from the Court is addressed may make a fresh request for a preliminary ruling by which it again submits the questions which the Court regarded, in that judgment, as not needing to be answered by it in the light of the answer given to other questions, in so far as that court sets out, in its new request, considerations such as those set out in paragraph 14 of the present judgment, from which it follows that an answer to the questions not examined is in fact necessary for the purposes of resolving the dispute in the main proceedings.

The first question

18By its first question, the referring court asks, in essence, whether the first sentence of Article 8(3) of Directive 2014/40 must be interpreted as meaning that the offer for sale of tobacco products via automatic vending machines in which unit packets of those products are stocked in such a way that they are not visible from the outside is covered by the concept of ‘placing on the market’ within the meaning of that provision.

19The Court notes, in that regard, that the concept of ‘placing on the market’ is defined by Article 2(40) of Directive 2014/40 as follows: ‘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’.

20According to the usual meaning of the words ‘make … available’, a tobacco product must be regarded as having been ‘placed on the market’ within the meaning of the first sentence of Article 8(3) of Directive 2014/40 when consumers can acquire it. Accordingly, where a tobacco product is made available for sale, it must be regarded as having been placed on the market, even before it has been purchased and payment has been made.

21Furthermore, it should be noted that, as is apparent from the wording of Article 2(40) and Article 8(3) of that directive, the means by which tobacco products are offered to consumers have no bearing on the meaning of the concept of ‘placing on the market’ for the purpose of that directive.

22Consequently, in the present case, the fact that the tobacco products are not visible within the automatic vending machine through which those products are made available for sale does not mean that it cannot be concluded that those products have been ‘placed on the market’ within the meaning of the first sentence of Article 8(3) of Directive 2014/40.

23In the light of the foregoing, the answer to the first question is that the first sentence of Article 8(3) of Directive 2014/40 must be interpreted as meaning that the offer for sale of tobacco products via automatic vending machines in which unit packets of those products are stocked in such a way that they are not visible from the outside is covered by the concept of ‘placing on the market’ within the meaning of that provision.

The second question

24By its second question, the referring court asks, in essence, whether the first sentence of Article 8(3) of Directive 2014/40 must be interpreted as meaning that the health warnings on a unit packet or any outside packaging of a tobacco product are ‘hidden’, within the meaning of that provision, solely because stocking that product in an automatic vending machine has the effect of making it impossible to see it from the outside.

25The first sentence of Article 8(3) of Directive 2014/40 establishes an obligation on Member States to ensure that the health warnings on a unit packet and any outside packaging of a tobacco product are not 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.

26Accordingly, the situation of tobacco products which, despite carrying health warnings on their unit packets or on their packaging, are enclosed in a storage unit, such as the machine at issue in the main proceedings, in such a way that they are not visible from the outside, is not expressly referred to by that provision.

27It is nevertheless necessary to determine whether, in such a situation, the health warnings must be regarded as having been hidden by ‘other items’ within the meaning of that provision.

28The Court notes, in that regard, that in accordance with the settled case-law of the Court, when interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives of the legislation of which it forms part (judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 67 and the case-law cited).

29The wording of the first sentence of Article 8(3) of Directive 2014/40 refers to the partial or total hiding of the health warnings on unit packets of tobacco products or on any outside packaging and not to the hiding of unit packets as such.

30Furthermore, as regards, in particular, the reference, in the first sentence of Article 8(3) of Directive 2014/40, to ‘other items’ which may hide the health warnings appearing on a unit packet or on the outside packaging of a tobacco product, the Court finds that the items listed non-exhaustively in that provision, namely tax stamps, price marks, security features, wrappers, jackets or boxes, are all capable either of being affixed directly to the unit packet of a tobacco product or on its external packaging, or of encasing that unit or its packaging. By contrast, none of those items can have the effect of making such a unit packet completely inaccessible and not visible to the public, as is the case where it is enclosed in a storage unit such as, in the present case, an automatic vending machine.

31That interpretation is borne out by the context in which Article 8(3) arises. The issue of the hiding of health warnings on unit packets of tobacco products which is the subject of that provision is entirely different from the issue of any absence of health warnings on the images of the unit packets of tobacco products which may appear on the outside of automatic vending machines in which those units are stocked. The latter issue falls within the scope of Article 8(8) of Directive 2014/40, as interpreted by the Court in the judgment of 9 December 2021, Pro Rauchfrei (C‑370/20, EU:C:2021:988).

32As regards the objective pursued by the prohibition on hiding health warnings, laid down in the first sentence of Article 8(3) of Directive 2014/40, that directive, according to Article 1 thereof, has a twofold objective, namely 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 (judgment of 9 December 2021, Pro Rauchfrei, C‑370/20, EU:C:2021:988, paragraph 27 and the case-law cited).

33In that regard, the Court has previously stated, in paragraph 30 of the judgment of 9 December 2021, Pro Rauchfrei (C‑370/20, EU:C:2021:988), in essence, that the health warnings which must appear on the unit packets of tobacco products or their packaging serve to counteract the desire to purchase triggered in a consumer by seeing such unit packets or an image thereof.

34The achievement of that objective is not jeopardised if a unit packet is enclosed in a storage unit, such as an automatic vending machine, in such a way that it is not at all visible from the outside. In so far as, in that case, the consumer cannot see that unit packet, the desire to purchase, which those health warnings seek to counteract, will not be triggered in that consumer.

35Therefore, the answer to the second question is that the first sentence of Article 8(3) of Directive 2014/40 must be interpreted as meaning that the health warnings on a unit packet or any outside packaging of a tobacco product are not ‘hidden’, within the meaning of that provision, solely because stocking that product in an automatic vending machine has the effect of making it impossible to see it from the outside.

Costs

36Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Fifth Chamber) hereby rules:

1.The first sentence of Article 8(3) 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/ECmust be interpreted as meaning that the offer for sale of tobacco products via automatic vending machines in which unit packets of those products are stocked in such a way that they are not visible from the outside is covered by the concept of ‘placing on the market’ within the meaning of that provision.

2.The first sentence of Article 8(3) of Directive 2014/40must be interpreted as meaning that the health warnings on a unit packet or any outside packaging of a tobacco product are not ‘hidden’, within the meaning of that provision, solely because stocking that product in an automatic vending machine has the effect of making it impossible to see it from the outside.