Answer given by Ms Kyriakides on behalf of the European Commission
16.9.2022
Legislative acts may provide empowerments for the Commission to amend certain non-essential elements by delegated acts. The essential elements of legislation must be determined in the basic act[1].
The introduction of a new definition for heated tobacco products in the Delegated Directive in question[2] was necessary in order to give effect to Articles 7(12) and 11(6) of Directive 2014/40/EU[3].
In particular, it enabled the Commission to comply with its obligations mentioned therein, as well as to limit, in line with the principle of proportionality, the withdrawal of exemptions only to heated tobacco products and not extend it to the defined general category of novel tobacco products in its entirety.
It is worth clarifying that Article 7(12) of Directive 2014/40/EU does not prevent the Commission from defining new categories of tobacco products as long as these products fall under the definition of Article 2(4) of Directive 2014/40/EU (‘tobacco products’).
Similarly, regarding the amendments to Article 11 of Directive 2014/40/EU, the Commission was empowered to propose these amendments as long as the products in question fall under the definition of tobacco products for smoking.
In view of the above, the Commission firmly believes that it acted within its delegated powers by defining heated tobacco products in the Delegated Directive and did not exceed its empowerment under Article 290 of the Treaty on the Functioning of the EU[4].
- [1] Non-binding criteria for the application of Articles 290 and 291 of the Treaty on the Functioning of the European Union, 2019/C 223/01.
- [2] COM(2022) 4367 final.
- [3] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014L0040
- [4] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E290:en:HTML