R v Secretary of State for Health and Others, ex parte Imperial Tobacco Ltd and Others (Case C-74/99); Federal Republic of Germany v European Parliament and Council (Case C-376/98)
| Jurisdiction | England & Wales |
| Judge | LORD SLYNN OF HADLEY,LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD CLYDE,LORD MILLETT |
| Judgment Date | 07 December 2000 |
| Judgment citation (vLex) | [2000] UKHL J1207-2 |
| Date | 07 December 2000 |
| Court | House of Lords |
And Others
Ex Parte Imperial Tobacco Limited and Others
[2000] UKHL J1207-2
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Clyde
Lord Millett
HOUSE OF LORDS
My Lords,
Directive 98/43/E.C. of the European Parliament and the Council dated 6 July 1998 (O.J.L213/9) provided, subject to specified qualifications, that all forms of advertising or sponsorship with the aim or the direct or indirect effect of promoting a tobacco product shall be banned in the Community.
The Directive, made having regard to articles 57(2), 66 and 100a of the E.E.C. Treaty, recited that there existed differences between the laws and administrative provisions of the Member States in relation to such advertising and sponsorship which
"transcend the borders of the Member States and the differences in question are likely to give rise to barriers to the movement between Member States of the products which serve as the media for such advertising and sponsorship and to freedom to provide services in this area, as well as distorting competition, thereby impeding the functioning of the internal market."
Accordingly these barriers should be removed and the laws of Member States be approximated. The Directive further recited that
"in accordance with article 100a (3) of the Treaty, the Commission is obliged, in its proposals under paragraph 1 concerning health, safety, environmental protection and consumer protection, to take as a base a high level of protection".
The Directive came into force on 30 July 1998 but it provided in article 6 that
"Member States shall bring into force laws, regulations, and administrative provisions necessary to comply with this Directive not later than 30 July 2001"
but
"In exceptional cases and for duly justified reasons, Member States may continue to authorise the existing sponsorship of events or activities organised at world level for a further period of three years ending not later than 1 October 2006 …"
The United Kingdom Government had already announced on 14 May 1997 in the Queen's Speech that it would be adopting measures, including legislation, to ban tobacco advertising. On 10 December 1998 the Government published a White Paper "Smoking Kills" (Cm.4177) and it subsequently published proposed regulations to give effect to the Directive with effect from 10 December 1999.
The Community Directive was controversial. Germany brought proceedings against the European Parliament and the Council challenging its validity and the four tobacco companies (the appellants) on 30 November 1998 applied for judicial review of the Secretary of State's decision to implement the Directive. Turner J. having granted leave to apply for judicial review on 16 December 1998, on 2 February 1999 ordered a reference to the European Court of Justice under article 177 (now article 234 E.C.) of the E.E.C. Treaty. On 29 October 1999 he granted an injunction restraining the Secretary of State from making regulations under section 2 of the European Communities Act 1972 in order to implement the Directive, such injunction to continue until the European Court of Justice determined the validity of the Directive on the reference.
There was an immediate appeal with the leave of the judge and on 16 December 1999 the Court of Appeal by a majority (Lord Woolf M.R. and Ward L.J., Laws L.J. dissenting) set aside the injunction [2000] 2 W.L.R. 834. The majority, whilst accepting that there were serious doubts as to the Directive's validity, considered that the grant of interim relief had to be decided in accordance with Community law principles. The latter involved the applicant showing that serious and irreparable damage would result and for that purpose financial damage could not in principle be regarded as irreparable. The majority also considered that to grant an injunction would usurp the political judgment involved in the Government's decision to promote public health.
When the appeal was opened before your Lordships' House, Mr. Sumption Q.C. on behalf of the tobacco companies, put forward forceful arguments that the Directive was invalid on the basis that it had nothing to do with the internal market or the protection of competition, but was purely a measure to protect public health which was plainly outside the powers conferred on the institutions by the Treaty. It emerged however that the Advocate General's opinion in the reference was due to be given on 15 June 2000 and it was agreed that the hearing should be adjourned. The Advocate General concluded that the Directive was ultra vires and the Secretary of State accepted that a national regulation should not be made pending the decision of the European Court and that the tobacco companies should have their costs limited to two counsel. Subsequently on 5 October 2000 the European Court of Justice held that the Directive was ultra vires: see Federal Republic of Germany v. Parliament and Council of The European Communities ( Case C-376/98). It is in those circumstances unnecessary for your Lordships to consider that question.
The appellants however ask that the House should rule on the question whether it was right in this case to grant interim relief and in particular whether the test for a national judge to consider whether to grant an injunction is that applicable only under domestic law (as the appellants contend) or whether the test under Community law is to be applied and if so whether and to what extent it is different from that under domestic law.
If the grant of the injunction was to depend wholly on domestic law the principle laid down in e.g. American Cyananid Co. v. Ethicon Ltd. [1975] A.C. 396 and in Reg. v. Secretary of State for Transport, Ex parte Factortame Ltd. (No. 2) ( Case C-213/89) [1991] 1 A.C. 603 are to be followed. But the essential question is whether domestic law only is relevant or whether Community law has any application. That, it seems to me plainly, involves a question of Community law. The granting of interim relief has already been considered a number of times by the European Court of Justice. Thus in Factortame (No. 2) the European Court of Justice held that in a case concerning Community law where interim relief was sought, if a national court considered that the only obstacle which precluded it from granting such relief was a rule of national law it had to set that rule aside.
There the challenge was to domestic legislation which was said to be contrary to Community law. The Court of Justice did not give guidance as to the principles to be followed by a judge in considering whether to grant interim relief. In that case on the question posed it was not necessary to do so. The House of Lords in considering whether interim relief should be granted, applied the principles in the American Cyananid case.
In Zuckerfabrik Suderdithmarschen A.G. v. Hauptzollamt Itzehoe (Joined Cases C-143/88 and C-92/89) [1991] E.C.R. I-415 the court was specifically asked to say "under what conditions national courts may order the suspension of enforcement of a national administrative measure based on a Community regulation."
The Court of Justice recognised that judges must follow rules of procedure determined by national law. At the same time it stressed, at p. 1-542, paras. 25-26 as it has consistently done, that the "uniform application [of Community law] is a fundamental requirement of the Community legal order."
It followed that even applying national procedural rules the question of whether or not to suspend the enforcement of administrative measures should be considered in all Member States, "subject, at the very least, to conditions which are uniform so far as the granting of such relief is concerned." Thus national judges should only grant relief upon the conditions on which the Court of Justice itself would grant relief under article 185 in the context of actions brought under article 183 (now articles 242 and 240 E.C.).
It seems to me now as it seemed to me in Zuckerfabrik (supra) that unless judges throughout the Community follow recognised conditions for the grant of interim relief, the review of national regulations applying Community law is going to vary widely. This is plainly wrong. There should be a Community-wide approach to the application, even via national regulations, of Community law. It is obvious that the over-ready granting of interim injunctive relief could undermine such application. National judges therefore needed to be told of the conditions to be satisfied if inconsistent and unjustified injunctive relief was to be avoided.
Neither Factortame (No. 2) nor Zuckerfabrik dealt expressly with the present situation which is not concerned with national legislation already in force and whose validity depends on Community law, but with the control of a Member State's power to adopt national regulations giving effect to a Community Directive whose validity is challenged. Clearly prima facie the State has a duty to give effect to the Directive within the time laid down and not to take steps which are liable seriously to compromise the result prescribed by the Directive to be achieved by the end of that period: ( Case C-129/96) Inter-Environnement Wallonie ASBL v. Region Wallonne [1997] E.C.R. I-7411. This is an obligation laid on all Member States equally where a regulation is made or, as here, where the Directive is addressed to all the Member States (article 249 ex 189). It seems to me that that uniformity which is "a fundamental requirement of the Community legal order" is no less necessary here than in the Zuckerfabrik situation. What States may do in adopting or refusing to adopt Community Directives for policy reasons is one thing; what...
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