Introductory text

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(1) and Article 83, in conjunction with Article 218(6)(a) thereof,

Having regard to the proposal from the European Commission,

Having regard to the consent of the European Parliament,

Whereas:

The conclusion of the World Health Organisation (WHO) Framework Convention on Tobacco Control (FCTC) was approved on behalf of the Community by Council Decision 2004/513/EC^f1.

In accordance with Council Decisions 2013/744/EU^f2 and 2013/745/EU^f3, the Protocol to Eliminate Illicit Trade in Tobacco Products to the WHO FCTC (‘the Protocol’) was signed on 20 December 2013, subject to its conclusion at a later date.

The Protocol represents a significant contribution to the international efforts to eliminate all forms of illicit trade in tobacco products, and thereby fight the circumvention of tax and customs duties obligations and reduce the supply of tobacco products, in line with Article 15 of the WHO FCTC. The Protocol also contributes to the smooth functioning of the internal market for tobacco products whilst ensuring a high level of public health.

The Protocol covers areas related to judicial cooperation in criminal matters, the definition of criminal offences and police cooperation. To the extent that Articles 14, 16, 19, 23, 26, 27, 29 and 30 of the Protocol may be implemented by measures falling within the scope of those areas, those provisions fall within the scope of Title V of Part Three of the Treaty on the Functioning of the European Union.

By means of legal acts, the Union has established common rules in the areas of the judicial cooperation on criminal matters and the definition of criminal offences^f4. Articles 14, 16, 26, 29 and 30 of the Protocol may affect the common rules or alter their scope. The Protocol should be approved on behalf of the Union as regards matters falling within the Union's competence only insofar as the Protocol may affect such common rules or alter their scope.

By concluding the Protocol, the Union will not be exercising shared competence, therefore Member States retain their competence in the areas covered by the Protocol which do not affect common rules or alter the scope of such common rules.

Ireland is bound by Council Act of 26 July 1995 and by Framework Decision 2001/500/JHA, and is therefore taking part in the adoption of this Decision.

In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

Council Decision (EU) 2016/1749^f5, adopted in parallel to this Decision, concerns the conclusion, on behalf of the Union, of the Protocol, with the exception of its provisions on obligations related to judicial cooperation in criminal matters and the definition of criminal offences.

The Protocol should be approved as regards matters that fall within the Union's competence,

HAS ADOPTED THIS DECISION: