‘Choking smokers, don’t you think the joker laughs at you’: European Union competence and regulation of tobacco products packaging under the new Tobacco Products Directive

Date01 August 2018
Publication Date01 August 2018
DOI10.1177/1023263X18773047
AuthorAnatole Abaquesne de Parfouru
SubjectArticles
Article
‘Choking smokers, don’t you
think the joker laughs at you’:
European Union competence
and regulation of tobacco
products packaging under the
new Tobacco Products Directive
Anatole Abaquesne de Parfouru*
Abstract
Directive 2014/40 updated and repealed Directive 2001/37. As with the previous Directive,the new
Tobacco Products Directive’s legal basis, proportionality, and subsidiarity were at issue in three
recently decided cases, an action for annulment and two preliminary rulings, upholding the Direc-
tive’s validity, as well as in another pending preliminary reference. The new TPD once again raises
questions of EU competence and recourse to the Article 114 TFEU general internal market legal
basis for health measures. This article examines the dual nature of internal market legislation and
interaction between internal market and public health objectives, analysing means of justifying the
legal basis and proportionality of health-related internal market measures: the high level of health
protection envisaged by mainstreaming provisions and the ‘decisive factor’ formula; the EU legisla-
ture’s discretion as to the most appropriate method of approximation; and its broad discretion in
areas involving complex assessments. This article examines the legal basis, proportionality, extent
and relevance of labelling and packaging provisions on health warnings, TNCO labelling, misleading
features and packet standardization. It suggests further adaptation of the public health legal basis, to
reflect the evolution of EU competences in practice and avoid contrived reliance on the internal
market objective, which should not, however, entail excessive risk-regulation.
Keywords
European Union competence, internal market, public health, Article 114 TFEU, legal basis,
proportionality, Tobacco Products Directive, labelling, packaging
*LL.B. (Birmingham), LL.M. (Nottingham), Ph.D. (UCD)
Corresponding author:
Anatole Abaquesne de Parfouru
E-mail: a.abaquesne@gmail.com
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(4) 410–451
ªThe Author(s) 2018
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DOI: 10.1177/1023263X18773047
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1. Introduction
1
the new Tobacco Products Directive (TPD), was adopted in April 2014 by
the European Parliament (EP) and Council under the ordinary legislative procedure, with Articles
53(1), 62 and 114 Treaty of the Functioning European Union (TFEU) as legal bases. The Com-
mission proposal was issued in December 2012
2
after a public consultation organized by the
Health and Consumers Directorate-General (DG SANCO),
3
with a record number of contributions,
followed by a consultation report,
4
regular discussions of the TPD Regulatory Committee,
5
studies
commissioned by the DG SANCO
6
and an impact assessment evaluating policy options.
7
An
insufficient number of reasoned opinions alleging non-compliance of the Commission proposal
with the principle of subsidiarity was issued by national Parliaments.
8
The Employment, Social
Policy, Health and Consumer Affairs Council adopted its general approach in June 2013.
9
The
1. 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, [2014] OJ L 127/1 (Directive 2014/40/EU) .
2. Proposal for a Directive of the European Parliament and of the Council 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, COM(2012)788 final.
3. The consultation took place between September and mid-December 2010.
4. Health and Consumers Directorate-General, ‘Report on the Public Consultation on the Possible Revision of the
Tobacco Products Directive’, European Commission (2011), https://ec.europa.eu/health//sites/health/files/tobacco/
docs/consultation_report_en.pdf, p. 68: 85,513 contributions were submitted. 96.03%of respondents were citizens,
2.71%were industry representatives, 0.75%were NGOs and 0.51%were government representatives (self-declared
affiliations). The report stressed the importance of citizen mobilization campaigns in some Member States such as
Italy, and that duplicates/ ‘form’ responses amounted to 57%of citizen contributions. Industry responses came mostly
from private persons and retailers from Poland, Italy, the UK and Germany. Overall, two-thirds of contributions came
from Italy (36%), due to the mobilization campaign, and from Poland (28%).
5. Proposal for a Directive of the European Parliament and of the Council 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, COM(2012)788 final, p. 4; Commission Staff Working Document Impact Assessment accompanying
the document for a Proposal for a Directive of the European Parliament and of the Council on the approximation of the
laws, regulations and administrative provisions of the Members States concerning the manufacture, presentation and
sale of tobacco and related products, SWD(2012)452 final, P1, p. 6.
6. J. Tiessen et al., ‘Assessing the Impacts of Revising the TPD’, Rand Europe (2010), https://ec.europa.eu/health//sites/
health/files/tobacco/docs/tobacco_ia_rand_en.pdf; E. Nolte et al., ‘Availability, Accessibility, Usage and Regulatory
Environment for Novel and Emerging Tobacco, Nicotine or Related Products’, Rand Europe (2012), https://www.rand.
org/pubs/research_reports/RR211.html; Matrix Insight, ‘Economic Analysis of the EU Market of Tobacco, Nicotine
and Related Products’, Matrix Insight (2013), https://ec.europa.eu/health//sites/health/files/tobacco/docs/tobacco_
matrix_report_eu_market_en.pdf.
7. Commission Staff Working Document Impact Assessment accompanying the document for a Proposal for a Directive
of the European Parliament and of the Council on the approximation of the laws, regulations and administrative
provisions of the Members States concerning the manufacture, presentation and sale of tobacco and related products,
SWD(2012)452 final.
8. Report from the Commission, Annual Report 2013 on relations between the European Commission and National
Parliaments, COM(2014)507 final, Annex 2: Seven reasoned opinions were submitted; Articles 7(2)(3) of Protocol
(No. 2) on the Application of the Principles of Subsidiarity and Proportionality, [2008] OJ C 115/206.
9. Council of the European Union, ‘Council Doc 11483/13, Proposal for a Directive of the European Parliament and of
the Council on the approximation of the laws, regulations and administrative provisions of the Member States con-
cerning the manufacture, presentation and sale of tobacco and related products – General Approach’, Council of the
European Union (2013), http://register.consilium.europa.eu/doc/srv?l¼EN&f¼ST%2011483%202013%20INIT,
Annex (EPSCO); Council of the European Union, ‘Press Release 11081/13: 3247th Council Meeting Employment,
Abaquesne de Parfouru 411
Environment, Public Health and Food Safety (ENVI) Committee of the EP, the committee respon-
sible, produced a report in July 2013, proposing amendments to the Commission proposal,
10
followed by EP debates and votes in October.
11
A trilogue compromise was reached in December
2013 between the Lithuanian Presidency, EP and Commission representatives, approved by Cor-
eper.
12
The measure was amended and adopted by the EP at first reading in February 2014, and by
the Council in its Transport, Telecommunications and Energy configuration in March 2014.
13
The
Social Policy, Health and Consumer Policy’, Council of the European Union (2013), http://www.consilium.europa.eu/
uedocs/cms_data/docs/pressdata/en/lsa/137549.pdf.
10. A7-0276/2013-PE508.085 (ENVI). See also the ENVI Draft Report (April 2013); Committees’ Opinions (JuneJuly
2013): European Parliament, ‘PE510.734, Opinion of the Committee on International Trade for the Committee on the
Environment, Public Health and Food Safety on the proposal for a Directive of the European Parliament and of the
Council 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’, European Parliament (2013), http://www.
europarl.europa.eu/meetdocs/2009_2014/documents/inta/ad/939/939393/939393en.pdf; European Parliament,
‘PE508.048, Opinion of the Committee on the Internal Market and Consumer Protection for the Committee on the
Environment, Public Health and Food Safety on the proposal for a Directive of the European Parliament and of the
Council 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’, European Parliament (2013), http://www.
europarl.europa.eu/meetdocs/2009_2014/documents/imco/ad/940/940929/940929en.pdf; European Parliament,
‘PE510.591, Opinion of the Committee on Legal Affairs for the Committee on the Environment, Public Health and
Food Safety on the proposal for a Directive of the European Parliament and of the Council 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’, European Parliament (2013), http://www.europarl.europa.eu/meetdocs/2009_
2014/documents/juri/pa/934/934626/934626en.pdf; European Parliament, ‘PE507.956, Opinion of the Committee on
Agriculture and Rural Development for the Committee on the Environment, Public Health and Food Safety on the
proposal for a Directive of the European Parliament and of the Council 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’, European Parliament (2013), http://www.europarl.europa.eu/meetdocs/2009_2014/documents/agri/
pa/932/932711/932711en.pdf and European Parliament, ‘PE508.180, Opinion of the Committee on Industry, Research
and Energy for the Committee on Environment, Public Health and Food Safety on the proposal for a Directive of the
European Parliament and of the Council 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’, European
Parliament (2013), http://www.europarl.europa.eu/meetdocs/2009_2014/documents/itre/pa/932/932171/932171en.
pdf; SJ-0151/13, Legal Opinion of the European Parliament Legal Service (March 2013); European Parliament,
‘PE527.873 Opinion on the legal basis of the proposal for a Directive of the European Parliament and of the Council on
the approximation of the laws, regulations and administrative provisions of the Member States concerning the man-
ufacture, presentation and sale of tobacco and related products’, European Parliament (2014), http://www.europarl.
europa.eu/sides/getDoc.do?pubRef¼-//EP//NONSGMLþCOMPARLþPE-527.873þ02þDOCþPDFþV0//
EN&language¼EN.
11. European Parliament, ‘CRE 08/10/20135: Debates: Manufacture, Presentation and Sale of Tobacco and Related
Products’, European Parliament (2013), http://www.europarl.europa.eu/sides/getDoc.do?type¼CRE&reference¼
20131008&secondRef¼ITEM-005&language¼EN&ring¼A7-2013-0276; European Parliament, ‘P7_TA(2013)0398:
Amendments adopted by the European Parliament on 8 October 2013 on the proposal for a Directive of the European
Parliament and of the Council 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 (Ordinary Legis-
lative Procedure: First Reading)’, European Parliament (2013), http://www.europarl.europa.eu/sides/getDoc.do?pub
Ref¼-//EP//TEXTþTAþP7-TA-2013-0398þ0þDOCþXMLþV0//EN.
12. Council of the EuropeanUnion, ‘Press Release 17905/13,Council approves compromise on tobaccodirective’, Council
of the EuropeanUnion (2013), http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/genaff/140146.pdf.
13. European Parliament, P7_TA(2014)0160, ‘European Parliament legislative resolution of 26 February 2014 on the
proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations
412 Maastricht Journal of European and Comparative Law 25(4)

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