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EUCJ rejects legal appeal against Tobacco Products Directive

11 May 2020

A leading trade association has criticised the decision to reject its legal claim against the EU Tobacco Products Directive (TPD), calling it “disappointing and curious”.

The International Tax Stamp Association’s (ITSA) legal action against the TPD was thrown out at the appeal stage by the EU Court of Justice (EUCJ) on grounds of inadmissibility, without any consideration of the merits of the claim.  

ITSA first launched a legal challenge at the EUCJ in 2018, claiming that the TPD implementing regulations on traceability and security features do not conform to the World Health Organisation (WHO) FCTC Protocol to Eliminate Illicit Trade in Tobacco Products. 

The key reason for the challenge was ITSA’s belief that the TPD implementing regulation contravenes the FCTC Protocol’s Article 8. This Article requires that the track and trace system for tobacco products is under government control, that duties should not be performed by or delegated to the tobacco industry, and that public officials should interact with the tobacco industry and those representing its interests in tobacco track and trace only to the extent strictly necessary.

In May 2019 the EUCJ dismissed the claims on the grounds that ITSA could not challenge the EU track and trace system because it did not have “a direct interest” in the TPD implementing regulation.

ITSA subsequently launched an appeal against this ruling in an attempt to shed light on the EUCJ’s “misunderstanding of certain basic facts” – but the appeal has now been rejected without any consideration of the merits behind it.

Juan Carlos Yañez, ITSA chairman, said: “This is a disappointing and curious decision. The EUCJ  determined that ITSA has no material interest in the directive’s derived regulation and the association’s claim was therefore not admissible. ITSA members are independent of the tobacco industry and provide traceability systems as part of effective anti-illicit trade programmes, so how is it possible that ITSA and its members do not have a material interest in the regulations? 

“The decision on non-admissibility is nonsensical and frustrating since it prevents substantial debate regarding the EU regulation compliance to WHO international law. The decision also calls into question the democratic rights of private parties to challenge EU regulation.”

Yañez declared: “The EU system’s compliance with the WHO Protocol is questioned by an ever-growing number of stakeholders including international NGOs such as the Framework Convention Alliance, the Smoke Free Partnership, the Association of European Cancer Leagues and the European Network for Smoking Prevention.”

The European Commission has committed to a review of the TPD in 2021. In the meantime, a growing number of politicians and civil society groups are calling for a review of Articles 15 and 16, which provide for the tracking and tracing and security features of tobacco products.

It is clear to ITSA and other stakeholders that the TPD was unduly influenced by the tobacco industry and that the control system in place relies too heavily on the industry it is attempting to regulate.

The FCTC Protocol came into force in 2018 and track and trace provisions must be implemented by its parties by 2023. The WHO has yet to define detailed requirements, which are scheduled to be discussed at the second Meeting of the Parties to the Protocol later this year.

Previous ITSA statements on the EU TPD can be found at:

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