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Application for a preliminary injunction to suspend the execution of individual provisions of the Tobacco Products Act unsuccessful
Press Release No. 26/2016 of 20 May 2016
Order of 18 May 2016
1 BvR 895/16
In an order published today, the Second Chamber of the First Senate of the Federal Constitutional Court refused to issue a preliminary injunction against individual provisions of the Tobacco Products Act, which will enter into force on 20 May 2016. The Chamber’s decision is based on a weighing of consequences. The main objective of the legal revision is to harmonise the European internal market in order to remove market barriers. Therefore, the provisions serve an important purpose of the European Union. In addition, the provisions aim at furthering health protection, which constitutes a public policy objective of paramount importance and is of constitutional rank (Art. 2 sec. 2 of the Basic Law [Grundgesetz – GG]). In contrast, the disadvantages the complainant asserted will ensue from the execution of the law that were admissible in the weighing process do not significantly outweigh the advantages mentioned above.
Facts of the Case:
The complainant produces different tobacco products. In its constitutional complaint and the corresponding application for a preliminary injunction, the complainant mainly challenges individual provisions of the Tobacco Products Act (Gesetz zur Umsetzung der Richtlinie über Tabakerzeugnisse und verwandte Erzeugnisse – Tabakerzeugnisgesetz) of 4 April 2016, which will enter into force on 20 May 2016. It complains, inter alia, about the provisions setting down the obligation to use what is known as “shocking pictures” on the packaging of tobacco products, the ban on placing cigarettes and roll-your-own tobacco having characterising flavours on the market, and the ban on misleading advertising information relating to taste, smell, flavouring and other additives or lack thereof on packaging or tobacco products. In its constitutional complaint, the complainant asserts that its fundamental rights under Art. 12 sec. 1, Art. 14 sec. 1, Art. 3 sec. 1, and Art. 5 sec. 1 GG have been violated.
Main Considerations of the Chamber:
The application for a preliminary injunction is admissible but unfounded.
1. The Federal Constitutional Court may provisionally decide a matter by way of a preliminary injunction if this is urgently required to avert severe disadvantage, prevent imminent violence, or for other important reasons in the interest of the common good (§ 32 sec. 1 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG). For this decision, the prospects of success in the principal proceedings are not to be taken into account except if the declaration sought, or the application made, in the principal proceedings is inadmissible from the outset or clearly unfounded. In case the outcome of the principal proceedings cannot be foreseen, the Federal Constitutional Court must weigh the consequences [by comparing the consequences that would arise without the preliminary injunction and those that would arise if it were issued].
2. The constitutional complaint is neither inadmissible from the outset nor clearly unfounded. However, it follows from the weighing of consequences that the Court cannot issue a preliminary injunction.
a) If the suspension of a law is at issue, a particularly strict standard applies for assessing whether the requirements under § 32 sec. 1 BVerfGG are met, because such suspension constitutes a considerable interference with the legislature’s primary competence. This standard is even stricter if a preliminary injunction is sought to suspend the execution of a legal norm transposing mandatory requirements of EU law into German law. Issuing a preliminary injunction in such a case presupposes that the party concerned is at risk of suffering particularly severe and irreversible damage from the execution of the law. Furthermore, this particularly strict standard applicable in such cases also sets a very high threshold for establishing that such disadvantages are imminent.
b) The complainant failed to establish that there existed particularly severe and irreversible disadvantages, especially of such a nature as to almost threaten one’s existence. It did not succeed in showing such disadvantages either for the whole sector of tobacco producers, or at least a considerable number of such companies, or with regard to its own situation.
For the most part, the complainant described the new law’s consequences for other market participants only in general terms, even if it did mention that small and medium-sized companies would be affected in particular. With regard to the complainant’s own situation, one must take into account that economic disadvantages stemming from the execution of a law but only affecting individual parties can only in exceptional cases constitute suitable grounds for suspending the execution of a law. Furthermore, in its judgments of 4 May 2016, the Court of Justice of the European Union already ruled on the proportionality of the key requirements of the EU Tobacco Products Directive II, on which the challenged provisions of the Tobacco Products Act are based, according to the standards of EU primary law. It did not have any objections with regard to those requirements. Therefore, one must generally accept the disadvantages ensuing from the transposition of the Directive itself; they cannot be of decisive weight in assessing the application to suspend the execution of the challenged provision.
The only disadvantages that could possibly be taken into account are those resulting from the challenge concerning the lack or the inadequacy of transitional rules, irrespective of whether this is due to mandatory specifications under EU law on when national acts of transposition must enter into force, or from a delay in the action of the German legislature. However, the complainant did not sufficiently substantiate that, for this reason alone, it was at risk of suffering irreversible and existence-threatening damage.
3. The only disadvantages that can possibly be taken into account on the complainant's behalf cannot be made out to significantly outweigh the disadvantages to the public if the legal revision were not to come into effect. Its main objective is to harmonise the European internal market to remove market barriers. Therefore, it serves an important purpose for the European Union. In addition, the provisions aim at furthering health protection, which constitutes a public policy objective of paramount importance and is of constitutional rank (Art. 2 sec. 2 GG). The realisation of these objectives would of course only be deferred temporarily if the preliminary injunction were issued. However, such a delay would further limit the effectiveness of the revised law beyond the transitional rules already contained in the law. All this considered, in particular with regard to the standards mentioned and the paramount importance of the aims pursued by the legislature, the disadvantages at hand do not carry such weight as to justify further limiting the law’s effectiveness.