A Dutch anti-smoking foundation loses its bid to use an alternative cigarette measurement method after the Grand Chamber finds that parties with actual access to official ISO standards cannot invoke non-publication in the Official Journal.
The Court of Justice sitting as a Grand Chamber delivered its ruling in Case C-155/24 today, answering a preliminary reference from the Dutch Supreme Administrative Court for Trade and Industry. The case arose from a request by the Stichting Rookpreventie Jeugd, a youth smoking prevention foundation, asking Dutch authorities to order the withdrawal of filter cigarettes from the market on the ground that the ISO-based measurement methods required by Article 4(1) of Directive 2014/40 do not reflect how smokers actually inhale, because they ignore the partial blocking of micro-perforations in cigarette filters. The foundation argued that the ISO standards, never published in the Official Journal of the European Union, were not binding on it, and that the more realistic Canadian Intense measurement method should be used instead.
The Court confirmed a key distinction drawn in its earlier 2022 ruling in the same case series. ISO standards made mandatory by an EU directive are binding on tobacco manufacturers, who have access to the official and authentic versions through the network of national standards bodies. The Court now clarified the position of non-industry parties such as consumer protection foundations. The rule of law principle in Article 2 TEU requires that ISO standards made mandatory in EU law be freely accessible under a system that is general, effective, without charge and non-discriminatory. Where such standards protect an interest that an individual or organisation defends, that party must also have free access to verify compliance.
However, the Court stopped short of ruling in the foundation’s favour on the key procedural question. All parties in the Dutch proceedings, including the foundation itself, had in fact accessed the content of the NEN-ISO standards, either at the library of the Netherlands Standardisation Institute or via paid consultation. Because actual access was established, the foundation could not rely on non-publication in the Official Journal to demand that authorities use a different measurement method. The Court answered only the first of seven referred questions and declared the remaining six questions unnecessary to answer in light of that answer.
The ruling has practical consequences for regulatory enforcement across EU Member States, as national food safety and consumer protection authorities must apply the ISO measurement methods when checking compliance with the emission limits under Article 3(1) of the Tobacco Directive, at least when all parties before them have had access to those standards. The Court left open what the position would be for parties who genuinely had no access, and separately confirmed that the rule of law requires the Union or Member States to bear the cost of creating free access to privately held technical standards that EU law makes mandatory.
The case returns to the Dutch referring court for a final decision on whether Dutch authorities were correct to refuse the foundation’s enforcement request. The Grand Chamber’s answer forecloses the foundation’s central legal argument, but national courts retain some room to assess whether the specific factual access in this case met the standard of being general, effective, without charge and non-discriminatory, as the Court’s answer requires.
