Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 7 August 2020 – Pro Rauchfrei e.V. v JS e.K.
(Case C-370/20)
Language of the case: German
Referring court
Bundesgerichtshof
Parties to the main proceedings
Appellant on a point of law: Pro Rauchfrei e.V.
Respondent in the appeal on a point of law: JS e.K.
Questions referred
Does the concept of ‘placing on the market’ within the meaning of the first sentence of Article 8(3) of Directive 2014/40/EU 1 cover the offering of tobacco products via vending machines in such a way that, although the cigarette packets contained in them display the warnings prescribed by law, the cigarette packets are initially stocked in the machine in such a way that they are not visible to the consumer, and the warnings on them become visible only when the customer operates the machine, which has previously been enabled by the cashier, and the cigarette packet is thus dispensed onto the checkout belt prior to the payment process?
Does the prohibition in the first sentence of Article 8(3) of Directive 2014/40/EU on warnings being ‘hidden by other items’ cover the case in which the entire tobacco packaging is hidden when the goods are presented by an automatic vending machine?
Is the criterion of ‘images of unit packets’ in Article 8(8) of Directive 2014/40/EU satisfied even if an image is not a faithful depiction of the original packaging, but the consumer associates the image with tobacco packaging on account of its design in terms of outline, proportions, colour and brand logo?
Are the requirements of Article 8(8) of Directive 2014/40/EU satisfied even if the consumer has the opportunity to see the cigarette packaging with the prescribed warnings prior to the conclusion of the contract of sale, irrespective of the depiction used?
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1 Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1).