R (on the application of British American Tobacco Ltd and Others) v Secretary of State for Health; R (on the application of Philip Morris Brands SARL and Others) v Secretary of State for Health; R (on the application of JT International SA and another) v

A. INTRODUCTION, SUMMARY & CONCLUSIONS

1–46

(1) The applications for judicial review: The Regulations being challenged

1

(2) The international and EU context

2

(3) Implementation of the Framework Convention on Tobacco Control ("FCTC")

3–6

(4) A summary of the grounds of challenge

7–17

(5) The intrinsic value of the Claimants' evidence

18–28

(6) Proportionality

29–36

(7) The limits of judicial decision making

37

(8) Violation of property rights

38–39

(9) Challenges to the lawfulness of the Regulations

40

(10) Challenges to other Treaty and Fundamental Charter Provisions

41

(11) BAT's challenges to the pre-legislative consultation exercise

42–43

(12) The Tipping Manufacturers' challenges

44–45

(13) Conclusions

46

B. THE FACTS

47–89

(1) The litigation/procedural matters

47–50

(2) The parties

51–54

(3) The Standardised Packaging of Tobacco Products Regulations 2015

55–59

(4) The Government's policy in introducing the Regulations

60–76

(i) General objectives – the scale of the health problem

61–70

(ii) Specific objectives

71–76

(5) The commercial and economic effect of the Regulations

77–84

(6) The rights in issue

85–89

C. THE CONSULTATION PROCESS LEADING UP TO THE PROMULGATION OF THE REGULATIONS

90–149

(1) The identity of the decision maker: Parliament

90–92

(2) The Stirling Review

93–96

(3) The 2012 Consultation

97–99

(4) The introduction of plain packaging rules in Australia

100

(5) The February 2013 Submissions

101

(6) The Summary Report: July 2013/the position in relation to Australia

102–103

(7) The setting up of the Chantler Review

104–106

(8) The Chantler Review Report

107–116

(9) The position of the Chief Medical Officer in the light of Chantler

117

(10) The response of the Government to the Chantler Review: April 2014

118

(11) The 2014 Consultation

119–120

(12) Contingency planning and notification to the European Commission

121–124

(13) The December 2014 Submission

125–134

(14) The 2014 Impact Assessment

135–138

(15) The Pechey Elicitation Study (2013)

139–142

(16) The Ministerial decision to lay draft Regulations before Parliament

143–148

(17) The promulgation of the Regulations by affirmative resolution

149

D. THE RELEVANT LEGISLATIVE FRAMEWORK

150-

(1) Introduction

150

(2) The Framework Convention on Tobacco Control ("FCTC")

151–175

(i) Signatories/relevance

151–152

(ii) Status as a guide to interpretation

153–156

(iii) The stated objectives of the FCTC

157–159

(iv) The prohibition on advertising in the FCTC

160–166

(v) Guidelines on Article 13 FCTC

167

(vi) The protection of national health policies from vested tobacco interests: Article 5(3)

168–169

(vii) Guidelines on Article 5(3)

170–173

(viii) The principle of transparency

174–175

(3) The Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS")

176–186

(i) TRIPS

176

(ii) The basic rights conferred by a trade mark/the distinction between the right to exclude and the right to use: Article 16

177

(iii) Public health limitations on trade mark rights: Articles 7 and 8

178–182

(iv) Additional powers to introduce legislation derogating from trade mark rights: Article 17

183

(v) Institutional encumbrances on use rights: Article 20

184

(vi) Restrictions on licensing practices due to competition law: Article 40

185

(vii) FCTC and TRIPS

186

(4) Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (the "TMD")

187–208

(i) The TMD is not intended to be exhaustive of trade mark rights

187

(ii) The interpretation of EU subordinate legislation: Always subject to superior rules and principles

188–194

(iii) The 2015 amendments to the TMD – the "recast"

195–208

(5) Council Regulation (EC) No. 207/2009 of 26 February 2009 or the Community Trade Mark (the "CTMR")

209–223

(i) The CTMR

209

(ii) Trade marks are property rights: Recital 11

210

(iii) The unitary character of CTMs

211–213

(iv) Public policy limitations on CTM rights

214–216

(v) Preservation of right of Member State to apply national (public policy) rules to CTMs

217–218

(vi) The 2015 Amendments to the CTMR

219–223

(6) Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (the "Enforcement Directive")

224–239

(7) Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 (the "TPD")

225-

(i) Legislative competence

225–226

(ii) Points deriving from the Recitals

227–233

(iii) The TPD is a "first" and "basic" measure of harmonisation: Recital 53

234

(iv) Relationship with international law/TRIPS, FCTC

235

(v) Prohibition on, inter alia, use of trade marks in relation to advertising of tobacco products

236–237

(vi) The right of Member States to introduce additional restrictions on advertising: Standardisation of the packaging of tobacco products

238

(vii) The five year mandatory review: Article 28

239–240

(8) Section 94 Children and Families Act 2014

241–247

(9) The Regulations

248–250

(i) Restrictions imposed on the external packaging and on the products themselves: Regulation 3–6

248

(ii) Preservation of registration rights: Article 13

249

(iii) The duty to conduct periodic reviews: Regulation 21

250

E. GROUND 1: THE REGULATIONS ARE UNLAWFUL CONSTITUTING THE IMPLEMENTATION OF AN UNLAWFUL POWER UNDER ARTICLE 24(2) TPD

251–275

(1) The issue

251–253

(2) The questions referred to the Court of Justice

254

(3) The issues determined in the case

255

(i) Factors relevant to interpretation: Health protection, the FCTC and the WHO Guidelines

256–260

(ii) The threat of an increase in illicit trade

261–263

(iii) The legality of Article 24(2) TPD: The right of Member States to adopt measures relating to tobacco control, including standardised packaging

264–266

(iv) The proportionality challenge: Margin of appreciation; the precautionary principle; impairment of the essence of fundamental rights

267–270

(v) The fourth limb of the proportionality test: Proportionality strictu sensu / fair balance

271–272

(vi) Subsidiarity

273–274

(4) Conclusions

275

F. GROUND 2: THE "LIMITED" WEIGHT ATTACHED TO THE CLAIMANTS' EVIDENCE

276–404

(1) The issue

276–281

(2) The basic methodological principles

282

(i) Independence & bias/conflict of interest

283–286

(ii) Peer review

287–291

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