The Court of Justice of the European Union (CJEU) has upheld Delegated Directive 2022/2100 withdrawing exemptions for heated tobacco products, ruling that the Commission did not exceed its powers
The CJEU was asked by the High Court (Ireland) for a preliminary ruling on the validity of Delegated Directive (EU) 2022/2100, which amends Directive 2014/40/EU by removing certain exemptions for heated tobacco products. In its judgment C-759/23 PJ Carroll & Company Ltd, Nicoventures Trading Ltd v The Minister for Health, Ireland, The Attorney General, delivered on 26 June 2025, the Court rejected the applicants’ arguments and upheld the delegated directive. It found that the Commission had not exceeded its powers and that its assessment of market developments was in accordance with EU law.
Summary
Reference has been made to the by the High Court (Ireland) for a preliminary ruling of the CJEU on the validity of Delegated Directive (EU) 2022/2100, which amends Directive 2014/40/EU by withdrawing certain exemptions for heated tobacco products. The Court rejected the applicants’ arguments and validated the delegated directive. It found that the Commission had not exceeded its powers and that its assessment of market trends was in compliance with Union law.
Facts
PJ Carroll & Company Ltd and Nicoventures Trading Ltd (tobacco merchants) challenge the transposition into Irish law of delegated directive 2022/2100, which bans flavoring in heated tobacco products and imposes labeling obligations. The defendants are the Irish Minister for Health, Ireland and the Attorney General.
Directive 2014/40 provided for exemptions for certain tobacco products but authorized the Commission to withdraw them in the event of significant market developments, such as increased sales or consumption by young people. Delegated Directive 2022/2100 withdraws these exemptions for heated tobacco products, a new product category.
The applicants’ arguments
The applicants’ first plea is that the directive is ultra vires. In their view, the Commission defined a new product category (heated tobacco) without a sufficient legal basis, thereby encroaching on the powers of the European legislator (infringement of Article 290 TFEU).
Secondly, they point to an incorrect methodology on the part of the Commission. The Commission had wrongly assessed the significant evolution of the market by basing itself on the number of units sold rather than on tobacco content, thereby distorting the comparison with other products.
The Court’s assessment
On the legality of the delegated directive, the Commission was empowered by Articles 7(12) and 11(6) of Directive 2014/40 to withdraw exemptions in the event of significant developments. The definition of heated tobacco products is part of the regulatory framework and not a political choice reserved for the legislator. Directive 2014/40 is aimed at both the internal market and health protection, and the Commission has acted in accordance with these objectives.
On the assessment of market evolution, the notion of significant evolution (Article 2(28) of Directive 2014/40) is based on sales volumes, not tobacco content. The Commission’s methodology (based on units sold) is compliant, as it better reflects consumption habits, particularly among young people.
Practical consequences of the decision
The consequences of this ruling are, firstly, the validation of delegated directive 2022/2100. Member States may maintain the ban on flavoring and the labeling requirements for heated tobacco products.
Secondly, the ruling has an impact on the tobacco industry. Manufacturers must comply with general rules such as the flavoring ban, health labeling, etc., without benefiting from the initial exemptions.
Finally, the ruling reinforces the EU’s anti-smoking policy. The Court confirms the Commission’s room for manoeuvre in adapting regulations to market developments.
Conclusion: The CJEU rejects the applicants’ arguments and validates the delegated directive. This confirms the Commission’s power to regulate new tobacco products to protect public health.
