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
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 19 May 2016 |
| Neutral Citation | [2016] EWHC 1169 (Admin) |
| Docket Number | Case No: CO/2322/2015, CO/2323/2015, CO/2352/2015, CO/2601/2015 & CO/2706/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 May 2016 |
The Queen on the application of
The Queen on the application of
The Queen on the application of
The Queen on the application of
The Queen on the application of
[2016] EWHC 1169 (Admin)
Mr Justice Green
Case No: CO/2322/2015, CO/2323/2015, CO/2352/2015, CO/2601/2015 & CO/2706/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Case No: CO/2322/2015: Nigel Pleming QC, Geoffrey Hobbs QC, David ScannelL and Philip Roberts (instructed by Herbert Smith Freehills LLP) appeared on behalf of the First Claimants
Case No: CO/2323/2015: Marie Demetriou QC and Daniel Piccinin (instructed by Skadden, Arps, Slate, Meagher & Flom (UK) LLP) appeared on behalf of the Second Claimants
Case No: CO/2352/2015: David Anderson QC, Emma Himsworth QC and Jennifer Macleod (instructed by Freshfields Bruckhaus Deringer LLP) appeared on behalf of the Third Claimants
Case No: CO/2601/2015: Dinah Rose QC, Brian Kennelly, Lindsay Lane, Jason Pobjoy and Maxwell Keay (instructed by Ashurst LLP) appeared on behalf of the Fourth Claimant
James Eadie QC, Martin Howe QC, Ian Rogers QC, Catherine Callaghan, Julianne Kerr Morrison, Nikolaus Grubeck and Jaani Riordan (instructed by the Government Legal Department) appeared on behalf of the Defendant in relation to each of the above proceedings
And
Peter Oliver and Ligia Osepciu (instructed by Leigh Day) appeared on behalf of the Intervener
The following proceedings have also been linked to the above proceedings:
Kelyn Bacon QC and Tim Johnston (instructed by Singleton Solicitor) appeared on behalf of the Claimants
James Eadie QC, Martin Howe QC, Ian Rogers QC, Catherine Callaghan, Julianne Kerr Morrison, Nikolaus Grubeck and Jaani Riordan (instructed by the Government Legal Department) appeared on behalf of the Defendant
Hearing dates: 10–11 th, 14–18 th December 2015
Approved Judgment
| 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 |
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