Tobacco Products Directive • Traceability of Tobacco Products (Article 14 of the Draft Directive of the European Commission)
TPD 2 knocks at the door.
Unrealistic targets for the implementation of a tracking and tracing system for tobacco products in the EU
On 26 February 2014, the Members of the European Parliament by a large majority adopted the compromise text, which has been developed within the framework of the so-called trilogue between the Presidency, representatives of the ENVI Committee in the European Parliament and the EU Commission. Also the Council on 14 March 2014 accepted this compromise text, so that the Tobacco Products Directive is expected to be published in late April / early May in the Official Journal of the European Commission and could come into force 20 days after its publication (May 2014).
Under Articles 15 and 16, the Directive provides for far-reaching obligations on the Member States and especially on the legally operating economic actors in the European tobacco markets with regard to the implementation of a new tracking & tracing system for tobacco products.
Under Recital 29 of the Directive, the European Commission describes that considerable volumes of illicit products are placed on the market which do not fulfill the requirements laid down in Directive 2001/37/EC and that there are indications that these volumes might increase. Moreover, it is pointed out that such illicit products undermine the free circulation of compliant products and the protection provided for by tobacco control legislation.
The problem description of the EU Commission factually is correct. However, the effectiveness of the measures envisaged in relation to the core problem of combating all forms of illegal activities in the production of and the trade in tobacco products under the Tobacco Products Directive clearly has to be called into question. The proposed tracking and tracing system for tobacco products simply starts from the wrong place, namely exclusively at legally operating manufacturers and trading companies which are already known to the authorities of the respective Member States.
Via this newly to be created BIG DATA platform ultimately only all legally manufactured and legally traded packs of tobacco products and their transfers into the internal market will/can be recorded. Consequently, BIG DATA in future only supplies the dubious benefit to be able to track all legal movements of tobacco products through the whole value chain across the Union and thus to be able to monitor and better enforce their compliance with the legislation. These findings could be generated with much less elaborated systems than the BIG DATA tracking & tracing system proposed by the European Commission. Therefore, in our view, the principle of proportionality with regard to the specifications of Article 15 and 16 are not respected.
Lengthy phase expected for the elaboration of the Implementing Acts to Articles 15 and 16. E.T.V. advocates realistic timeframes for implementing a tracking and tracing system for tobacco products.
The timeframe of five years  for the complete implementation of a tracking and tracing system for cigarettes and fine-cut products through nearly the entire value chain asked by the European Commission is not sufficiently thought out, as the EU Commission by means of so-called implementing acts has yet to make all the necessary specifications for the technical and organizational configuration of the tracking and tracing system (determine the technical standards for the establishment and the operation of the tracking and tracing system, including the marking with a unique identifier, the recording, transmitting, processing and storing of data and access to stored data).
The technical bases as well as the workflow of this system and also the duration of the necessary specification work is therefore stand today completely unknown, the necessary preparatory measures both of the Member States and of the economy thus put on ice; and yet the countdown with regard to the implementation obligations will expectedly be launched in May this year.
The E.T.V. therefore considers it necessary and appropriate, that only after the completion of all implementing acts in relation to Articles 15 and 16 the five-year transition period for the elaboration of an interoperable tracking & tracing systems will start.
 The Tracking & Tracing – Obligations for cigarettes and fine-cut packages shall then take effect in all EU-28 Member States within 5 years after entry into force of the Directive (May 2019) – for other tobacco products the obligations will then be binding in May 2024.