The High Court has referred questions to the Court of Justice of the European Union (CJEU) about the validity of EU rules that remove exemptions for heated tobacco products (HTPs). The referral follows a challenge by two companies in the British American Tobacco group, supported by three Philip Morris group companies. The High Court did not decide that the rules are invalid.
The challenge concerns Commission Delegated Directive (EU) 2022/2100 and Irish regulations intended to implement it. The directive excludes HTPs from exemptions that otherwise apply to certain tobacco products, including exemptions concerning flavoured products and packaging warnings. The Irish regulations were due to take effect on 23 October 2023.
The applicants sought a declaration that the Irish regulations were beyond the powers conferred by the European Communities Act 1972 and contrary to the Constitution, on the basis that the EU directive was invalid. The High Court said it had no authority to declare an EU act invalid. It considered whether the applicants had raised well-founded arguments that required a reference to the CJEU.
Mr Justice Cian Ferriter found reasonable doubts about whether the Commission exceeded its delegated powers by defining HTPs as a new category and removing the relevant exemptions. He said it was arguable that this involved a political choice reserved to the EU legislature, particularly because HTPs were new products and the definition could cover products classed as either smokeless tobacco or tobacco for smoking. The judge also considered it arguable that the Commission’s sales analysis did not compare like with like: it counted products by stick or unit despite differences in tobacco content, although a tobacco-weight comparison appeared to be available.
Those findings met the threshold for referring validity questions. The court did not accept a separate challenge alleging inadequate reasons and a breach of good administration, and decided not to refer questions on that issue.
The State opposed the challenge, arguing that the Tobacco Products Directive covered novel tobacco products and that the Commission’s task was technical. It also said the directive permitted sales volumes to be reported by stick or weight. The judge did not resolve the underlying EU-law dispute. He ordered a reference on the two issues that raised reasonable doubt and said the questions’ wording would be discussed with counsel. Related annulment proceedings were pending before the EU’s General Court, but the High Court considered that their admissibility had not been established and proceeded with the reference. The CJEU will determine how to manage the related cases.