An Austrian local administrative authority fined MM, a managing director of a tobacco wholesaler, €1,000 for supplying cigarette packets to a retailer bearing promotional terms such as “perfectly rounded” and “with slow curing” that violated provisions on labelling in Austria’s tobacco control law. The Regional Administrative Court annulled the fine, reasoning that the supply to a retail outlet did not constitute “placing on the market” under the tobacco control law and the EU Tobacco Products Directive (TPD). However, upon appeal, the Austrian Supreme Administrative Court referred the matter to the Court of Justice of the European Union (CJEU) for further clarification on what “placing on the market” meant.

The CJEU ruled that the obligation imposed on Member States by Article 23(2) of the TPD – to prevent the placing on the market of non-compliant tobacco products – extends beyond the sale by retail outlets to consumers. Specifically, the Court clarified that this obligation also applies at earlier stages of the supply chain, including the supply from a wholesaler to a retail outlet. The CJEU held that limiting enforcement to retail sales would undermine the directive’s objective of ensuring high public health protection and effective compliance across the entire supply chain. The judgment emphasized that Member States must conduct enforcement and surveillance at all stages – from manufacture to retail – to prevent non-compliant products from becoming accessible to consumers.