20 octobre 2021 Pierre Perrin-Monlouis
The European Commission has today decided to refer Finland to the European Court of Justice (ECJ) for a second time for failing to comply with an earlier judgement by the European Court of Justice on 18 May 2006 concerning tobacco for oral use in the Åland Islands. The Court’s judgment in this case (C-343/05) confirmed Finland’s failure to comply with Article 8 of Directive 2001/37/EC on the manufacture, presentation and sale of tobacco products, which prohibits the placing of tobacco for oral use on the market. The Commission will ask the Court to condemn Finland to pay a lump sum and, if Finland fails to comply before the judgment, a daily penalty. Tobacco is the single largest cause of avoidable death in the European Union, accounting for over 650.000 deaths each year. It is estimated that 25% of all cancer deaths and 15% of all deaths in the Union could be attributed to smoking. Tobacco for oral use contains particularly large quantities of carcinogenic substances.
European Health Commissioner Markos Kyprianou said: “The Commission decision underlines that given the health risks linked to the use of oral tobacco, the Commission has no tolerance for allowing the placing on the market of that product. We cannot accept that the prohibition of placing of tobacco for oral use on the market is not transposed or implemented by Member States or even by parts of Member States. Only the consistent and continuous application by all Member States of all Community provisions relating to tobacco can achieve our goals in fighting tobacco.”
Article 8 of Directive 2001/37/EC on the manufacture, presentation and sale of tobacco products prohibits the placing of tobacco for oral use on the market. Tobacco for oral use means ‘all products for oral use, except those intended to be smoked or chewed, made wholly or partly of tobacco’. This category includes ‘snus’ – a form of moist snuff.
Member States are responsible for the correct transposition of EU legislation on their whole territory. In Finland, the Åland Islands are empowered to legislate on health matters. For this reason, the Åland Islands had to adopt their own legislation in order to comply with Directive 2001/37/EC. In 2002, as it Åland Islands had not yet transposed Article 8 of that Directive, the Commission started an infringement procedure.
In 2005, given that the Åland Islands took no measures to comply with their obligations, the Commission referred the case to the Court. On 18 May 2006 the Court concluded in its judgment in case C-343/05 that by failing to ensure transposition by Åland of Article 8 of Directive 2001/37/EC and observance on vessels registered in Finland of the prohibition on placing on the market of snuff laid down by that provision, the Republic of Finland has failed to fulfil its obligations under the EC Treaty and Directive 2001/37/EC.
Only in January 2007 the Åland Islands, after the opening of a second infringement procedure under Article 228 EC, adopted new legislation aiming to comply with the judgment. However, that legislation still fails to implement the above Directive because:
it only prohibits oral tobacco known as “snus” from entering the market, rather than oral tobacco in general, as foreseen in the EU Directive; and
in relation to the selling of oral tobacco on vessels, the law limits its application to vessels operating within Finnish territorial waters. This would allow the sale of oral tobacco on vessels registered in the Åland Islands, once these vessels exit Finnish territorial waters.
The Commission can only be satisfied with a ban without restrictions. It has to be stressed that the sales of ‘snus’ on vessels not only affect the 25.000 residents of Åland but attract also tourists from other parts of Finland or from other Member States.
In addition, both Finland and Sweden have signed and ratified the United Nations Framework Convention on Tobacco Control (FCTC), and therefore have legal obligations under international law to cooperate in favour of tobacco control.
In these circumstances, the Commission considers that Finland has not complied with its obligations under Directive 2001/37/EC and with the court judgment. The Commission proposes to ask the Court to impose on Finland a lump-sum fine of over 2.029.536 € and if Finland fails to comply before the judgment, a daily penalty payment of 19.828,8 €/day.