Daniel Gueguen

A delegated act tabled under EU tobacco legislation has sparked off an intriguing debate about the relationship between international treaties and EU secondary legislation. Is the European Commission respecting the WHO Protocol to Eliminate Illicit Trade in Tobacco Products?

In past years the Newsletter has spilt copious amounts of ink writing about the relationship between EU legislative acts on one hand and delegated and implementing acts on the other. The same goes for the interaction between delegated acts and implementing acts, on which EU Court of Justice has ruled several times. But a blind spot remains: what happens if a piece of EU secondary legislation is compliant with the legislative act, but not with an international agreement that the EU has signed? This raises fascinating legal questions about the hierarchy of norms, not only in the Union but within the broader international community. To our knowledge, no academic had dared to venture into this terra incognita until 30 January, when a link to an article by Christian Mestre, Former Dean of the Law Faculty at the University of Strasbourg, turned up on a media website specialised in anticounterfeiting issues. The catalyst for the article was a delegated act, adopted by the European Commission on 15 December 2017, under Directive 2014/40/EU – the Tobacco Products Directive, or TPD. As the Newsletter reported previously (see #39), the EU executive has spent a good 18 months preparing important measures to implement the TPD provisions on tracking and tracing of tobacco products and thereby combat illicit trade. Two implementing acts have been adopted and are awaiting publication, but the delegated act, which proposes setting down key elements of ‘data storage contacts’ (i.e. the data collected from traceability operations) concluded between manufacturers and an independent third party, is under-going scrutiny at the European Parliament (EP).

Mestre’s analysis: the EU has got to keep the faith
The Professor does a detailed comparison between the delegated act and the WHO Protocol to Eliminate Illicit Trade in Tobacco Products, an international agreement concluded in 2012 under the auspices of the Framework Convention on Tobacco Control (FCTC). He looks specifically at Article 8 of the Protocol on the setting up of tracking and tracing systems (which are seemingly much stricter than what is envisaged in the TPD, in terms of the extent of tobacco industry participation), and asks: is this delegated act in conformity with the Protocol and what could be the consequences if it is not? In Prof Mestre’s view, based on general principles of customary international law, in particular the principle of good faith, the EU and its Member States are obliged not to endanger the object and purpose of the WHO Protocol. This applies across the board, not only to legislative acts but equally delegated and implementing acts. Prof Mestre also considers this conclusion to be unaffected by the fact that the Protocol has not yet entered into force due to an insufficient number of ratifications by the Parties. Because the EU has signed the Protocol, he asserts, it is bound not to undertake action that is against the text’s object and purpose. Therefore, a delegated act in non-conformity with international law is invalid and the provisions of Article 8 of the Protocol could be invoked in support of an action to contest the act’s validity.

Smoke signals of a Parliament veto attempt
It appears Prof Mestre is not a lone voice, as the Newsletter has received information that a motion to object to the delegated act has been tabled by GUENGL MEP Younous Omarjee, apparently on similar grounds of non-compliance with the Protocol. Mr Omarjee (pictured) has developed a reputation for tenacity, especially given his recent role in the plenary vote on banning electric pulse fishing. He was also one of the first to sign up to the EP’s informal anti-tobacco group. Thus, the Commission and other supporters of the delegated act could well have a fight on their hands to repel his efforts. It is understood that the Omarjee resolution is currently being drafted. It is expected to be discussed – and quite possibly voted on – by the Committee on Environment, Public Health and Food Safety (ENVI) on 19-20 February.

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