Swedish Match 2004 and Swedish Match II 2018 C-210/03 , C-151/17

Updated: Jan 8

(2018)

SUBSIDIARITY AND PROPORTIONALITY

PRECAUTIONARY PRINCIPLE

MANIFESTLY INAPPROPRIATE IN COMPLEX CASES


LEGAL ANALYSIS

Manufacturers of snus (oral tobacco) challenge the continuing ban on oral tobacco. Snus is an oral tabac only allowed in Sweden. The Directive 2014/40 bans it in the whole EU.


They argued that the prohibition breached inter alia

(1) the principle of equal treatment as well as the principles of

(2) proportionality and

(3) subsidiarity.


CJEU:

→ Dual objective of the directive: internal market + high level of protection of human health (§67).

→ Even if normally public health might be better achieved at MS level in this case, this creates divergence of the ban between the MS (§68).

Because these two objectives are interdependent better achieved at EU (§69)

→ in complex matters only violates proportionality if MANIFESTLY INAPPROPRIATE (§36)

→ wide margin of appreciation (confirmation of the Philip Morris Case §166)

→ Take into account the PRECAUTIONARY PRINCIPLE because this is so addictive gives a broader DISCRETION (§38, §47)

→ the objective of protection of HEALTH TAKES can take PRECEDENCE over ECONOMIC considerations (§54)(=Philip Morris §154,155)


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