Poland v. Council of the European Union

Pursuant to Article 7 and Article 9 of the World Health Organisation Framework Convention on Tobacco Control, the European Union passed Directive 2014/40 to regulate tobacco products. The Directive required cigarette packs to include graphic images of diseased human organs and banned menthol cigarettes. It also regulated electronic or “e-cigarettes” by limiting the amount of nicotine they could contain and imposing bans on e-cigarette advertising similar to the bans affecting traditional tobacco products.

Poland sought to have the European Court of Justice declare the Directive invalid, arguing that the Directive infringed the principles of proportionality and subsidiarity found in Article 114 of the Treaty on the Functioning of the European Union (“TFEU”).

The Court upheld the Directive in its entirety. The Court reasoned that the TFEU requires the European Union to ensure a high level of human health protection in all policies and activities. The Court rejected Poland's argument that the rules banning menthol cigarettes were unfair to its smokers, as Poland has the world's highest rate of menthol smokers, and held that the European Union had the right and the duty to regulate flavored tobacco because flavored products have been found to be just as harmful as non-flavored tobacco products.

Upholding the regulations for e-cigarettes, the court noted that the new regulatory system for e-cigarettes was less strict than that governing tobacco.

"[T]he fact that mentholated tobacco products are a ‘traditional’ product because they have long been established on the European market, does not in any way alter the finding that their objective characteristics are, in essence, similar to those of the other tobacco products with a characterising flavour, in that their flavour masks or reduces the tobacco smoke’s harshness." Para. 50.

"As regards affixing a health warning on the labelling stating that tobacco products with a characterising flavour are as harmful to health as other tobacco products, this does not appear to be as appropriate for protecting consumer health as the prohibition on the placing on the market of tobacco products with such a flavouring, since the presence of that flavouring is, by its nature, likely to promote and sustain tobacco use, as is apparent from paragraph 44 above. Consequently, it must be found that the prohibition on the placing on the market of tobacco products with a characterising flavour does not go manifestly beyond what is necessary in order to attain the objective sought." Paras. 95-96.

"Directive 2014/40 has two objectives in that it seeks to facilitate the smooth functioning of the internal market for tobacco and related products, while ensuring a high level of protection of human health, especially for young people. Even if the second of those objectives might be better attained at the level of Member States, as argued by the Republic of Poland, the fact remains that pursuing it at that level would be liable to entrench, if not create, situations in which some Member States permitted the placing on the market of tobacco products containing certain characterising flavours, whilst others prohibit it, thus running completely counter to the first objective of Directive 2014/40, namely the improvement of the functioning of the internal market for tobacco and related products. The interdependence of the two objectives pursued by the directive means that the EU legislature could legitimately take the view that it had to establish a set of rules for the placing on the EU market of tobacco products with characterising flavours and that, because of that interdependence, those two objectives could best be achieved at EU level." Paras. 116-118.