Exclusive: Commission to face European court over tobacco law overreach

The European Commission faces a major challenge over allegations that it has exceeded its powers by issuing a directive that attempts to make a law, rather than implement one passed by the EU’s co-legislators, the Council and the Parliament. The Irish High Court will refer to the European Court of Justice the Commission’s attempt to restrict the sale of heated tobacco products that offer cigarette smokers the chance to switch to a safer alternative, writes Political Editor Nick Powell.

The court case was brought by two companies involved in the sale and marketing of heated tobacco products in Ireland, PJ Carroll & Company and Nicoventures Trading. They challenged the Irish State for transposing into law a directive from the European Commission, on the grounds that the Commission had exceeded the powers delegated to it under Tobacco Products legislation approved by the EU’s law-making bodies, the Council and the Parliament.

It is now certain that the Dublin court will refer the case to the European Court of Justice in Luxembourg, with lawyers for both sides now being asked to agree the questions on which the Court will rule. They are questions that the Commission will also need to answer, explaining why it felt able to extend its delegated powers to include products exempted under the original legislation.

In his judgement, Mr Justice Cian Ferriter rules that there are well-founded arguments for declaring the Commission’s directive invalid. It would lead to the total prohibition of flavoured heated tobacco products including glo, the product at the centre of the court case. Glo heats but does not burn tobacco, so its users benefit from not smoking. The companies that brought the case argued that the Commission was invalidly making a political choice to ban it.

The judge summarises this argument as meaning that the Commission had effectively prohibited “a category of tobacco product which was new on the market, which had not been in existence at the time of the enactment of the Tobacco Products Directive in 2014 and which had not been the subject of separate policy and health assessments…”.

He rules that “it is at least arguable that this involved a political choice which was only open to the EU legislature and not to the Commission”. As a result, he is referring the case to the Court of Justice of the European Union. He also asks the Luxembourg court to rule on the Commission’s methodology, as it acted because of rising sales of heated tobacco products but did not take into account the smaller amount of tobacco they contain, compared to cigarettes.

The Commission should have realised that it was on legally questionable ground. When it adopted the directive in 2022, four member states formally made a joint objection that the directive involved “essential elements reserved for the European legislators”. They added that the Commission was therefore “exceeding the limits of the delegated powers granted to it”.

The four countries also warned that “this use of the delegated power by the Commission is problematic and puts the institutional balance to the test, creating legal uncertainty and practical difficulties for all parties involved”. The Commission was clearly warned that it was doing something legally dubious and would probably end up in court.

A question not for judges but for politicians and citizens, is how dId the Commission get into this mess? At least two factors seem to have been in play here. One is an institutional tendency to overreach, to assert even greater powers than it actually has. The other is peculiar to tobacco policy, where it’s often inclined to follow the views of the World Health Organisation rather than come up with a solution that works for European citizens. In this case it reached for the WHO definition on heated tobacco products, rather than regard that as a matter for the EU’s member states.

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