Article 4(1) of the Decree provides that nicotine containing electronic cigarettes and their refill containers must be childproof and Article 4(2) provides that refill containers must have a child-resistant fastening even if it is not required by Regulation (EC) No 1272/2008. In this context, it should be noted that, for the purposes of Regulation (EC) No 1272/2008, electronic cigarettes can be considered to be a mixture in a container. By subjecting both electronic cigarettes and refill containers to the requirement of child-resistant fastenings irrespective of the concentration limit of nicotine in the mixture, the Decree imposes additional requirements going beyond the provisions of Regulation (EC) No 1272/2008. Article 7(2) of the Decree requires that, in so far as the recommendation to keep a product outside the reach of children is not mandatory on the basis of Regulation (EC) No 1272/2008, a packaging unit and any outer packaging must contain that recommendation. Therefore, the Decree goes beyond the labelling obligations under Regulation (EC) No 1272/2008. For those reasons, the additional requirements provided by Article 4(1) and (2) and Article 7(2) of the Decree have the potential to impede the placing on the Netherlands' market of products which comply with the applicable rules under Regulation (EC) No 1272/2008.

The Netherlands have provided justifiable grounds for believing that e-cigarettes and refill containers containing nicotine represent a serious risk to human health. Whereas only 2 poisoning cases were recorded in the first half of 2013, the number increased in the second half of the year, taking the total to 33 reported cases for 2013 and to 43 cases for 2014. For 2013, in 27 cases, the mixtures were ingested orally, including 8 children between 0 and 4 years. The labelling and packaging measures in the Decree are of a nature that can prevent access of children to those mixtures, and consequently are appropriate to reduce the risk to health of children.

The Decree is a temporary measure which may remain applicable until the measures adopted by the Netherlands transposing Directive 2014/40/EU into Dutch national law become applicable. The measures should therefore be authorised until 19 May 2016.

In order for the Commission to comply with the 60-day period for taking its decision laid down in Article 52(2) of Regulation (EC) No 1272/2008, this Decision should enter into force on the day of its publication.