Directive 2014/40/EU approximating Member States provisions on tobacco was challenged twice for breach of subsidiarity before the Court of Justice of the European Union. That makes it particularly interesting, beyond its material effect on the manufacture, presentation and sale of tobacco products, also because of its implications regarding subsidiarity, one of the main principles of European Union law.
The first of the two claims, requested by Philip Morris and British American Tobacco, focused on Article 7 of the Directive and has already been analysed in a previous article.
A further judicial challenge in 2014 regarding subsidiarity was brought on its Article 20 by Pillbox 38, the company acting commercially under the trademark “Totally Wicked” for the selling of electronic cigarettes, a practice also known as vaping.
The Second Chamber of the Luxembourg Court decided the case on the same date as for Philip Morris. In its judgment of 4 May 2016, EU jurisprudence dismisses once more an ex post claim that a Union act does not abide with the subsidiarity principle.
The Luxembourg magistrates recalls that the principle requires compliance with the procedural safeguards provided for by Protocol No. 2 annexed to the Treaty on European Union (TEU). Sadly enough, the Court does not even check whether this compliance existed or did not; and it excuses itself of such control simply because it allegedly was not requested to do it (paragraph 147).
However, we would expect more of a general principle of European Law enshrined in the Treaties. Its compliance should be monitored ex officio by the Court, on its own initiative rather than having to be expressly requested by the claimants or by the referring national judges.
On top of the procedural aspects of subsidiarity, Article 5(3), first paragraph TEU establishes substantive conditions for subsidiarity; namely, that in areas which do not fall within the European Union’s exclusive competence, a Union act is passed only if and in so far as its objectives cannot be sufficiently achieved by the Member States but can, by reason of the scale or effects of the proposed action, be better achieved at EU level.
In order to assess whether such Article 5(3) TEU was respected, the Union Court states that there are different legal standards at national level (paragraph 150). Indeed, some Member States compared electronic cigarettes to medicinal products, while others prohibited them and a third group of nations had not regulated them in any way.
Furthermore, there were also disparities between national laws and practices on advertising and sponsorship concerning electronic cigarettes.
Plus, the Court thinks that “those disparities are likely to increase over the coming years” in the absence of measures adopted at Union level.
Of course, it is quite un-objective to base a decision on a future trend with no evidence whatsoever other than the magistrates’ own prediction. But the present disparities in legal standards for regulation and marketing of electronic cigarettes suffice indeed to demonstrate that the objective of the Directive’s Article 20, i.e., approximating national provisions on vaping, is better achieved at EU level.
However, the reasoning of the Court makes it once more quite easy for the other EU institutions to pass the subsidiarity check, making of this more of a hypothetical requirement than a real one: it would be enough to include the approximation of national legislations or practices as the objective of a legal proposal, whenever differences in such legislations or practices do exist, and bingo – subsidiarity would be deemed to be complied with, according to the Luxembourg jurisprudence.
In conclusion, Pillbox had reasonably argued that Article 20 of the Directive did not comply with all aspects of subsidiarity, so that the said EU common provision for vaping should be consequently declared invalid. In terms of the procedural side of subsidiarity, the Court of Justice of the European Union issued once more a disappointing and rather poor opinion. As for the substantive aspect of the subsidiarity principle, the Luxembourg judges produced a new pattern of potentially sweeping consequences in further cases, as has been discussed above.