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The interest of protecting human health takes precedence over the right of the trader to sell tobacco products

Following an inspection, the Italian Customs Agency established that PJ, who holds a licence to operate a café in which tobacco products can be purchased, had sold cigarettes to a minor. Pursuant to national law, 1 the Customs Agency imposed on PJ an administrative fine of EUR 1 000 and an ancillary administrative penalty consisting of the suspension of his licence to operate a café in which tobacco products can be purchased for a period of fifteen days.

PJ paid the fine imposed on him. However, he challenged the ancillary administrative penalty, claiming that the national law was incompatible with EU law, in particular because the suspension of his trading licence was excessive and disproportionate.

The Consiglio di Stato (Council of State, Italy), hearing the case on final appeal, referred a question to the Court in order to obtain clarification as to whether the principle of proportionality precludes national legislation which, in the case of a first infringement of the prohibition on selling tobacco products to minors, provides for, in addition to the imposition of an administrative fine, the suspension of the trading licence for a period of 15 days.

In that regard the Court observes that the Framework Convention, 2 having been approved on behalf of the European Union, is an integral part of EU law, and that Directive 2014/40/EU 3 leaves it to the Member States to establish rules on penalties designed to prohibit tobacco consumption by minors. Against that background, the Court points out that the national provision at issue must, in principle, be assessed in the light of the requirements laid down by the FCTC as regards the sale of tobacco to minors. It is apparent from Article 16 of the FCTC that each party to that convention is required to adopt and implement effective measures to prohibit the sale of tobacco products to persons under the age set by domestic law, national law or 18, including penalties against sellers and distributors.