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 Woolf MR,Lord Justice Ward,Lord Justice Laws,the Master of the Rolls,LORD JUSTICE LAWS |
| Judgment Date | 16 December 1999 |
| Neutral Citation | [1999] EWCA Civ J1216-13 |
| Judgment citation (vLex) | [1999] EWCA Civ J1216-18 |
| Docket Number | QBCOF 1999/1097/C |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 1999 |
[1999] EWCA Civ J1216-13
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE (CROWN OFFICE LIST)
(MR JUSTICE TURNER)
QUEEN'S BENCH DIVISION
The Master Of The Rolls
Lord Justice Ward
Lord Justice Laws
QBCOF 1999/1097/C
MR CHRISTOPHER VAJDA QC and MISS SARAH MOORE (Instructed by The Office of Solicitors, DSS and DOH) appeared on behalf of the Appellants
MR JONATHAN SUMPTION QC, MR DAVID ANDERSON QC and MISS JEMIMA STRATFORD (Instructed by Messrs Lovell White Durrant, London, EC1A 2DY) appeared on behalf of the Respondents
Thursday, 16 December 1999
1.After a two day hearing (11 and 12 October 1999), on 29 October 1999 Mr Justice Turner granted Imperial Tobacco Limited, Gallaher Limited, Rothmans (UK) Limited and British American Tobacco Investments Limited (the Tobacco Companies) an injunction restraining the Secretary of State for Health, the Secretary of State for Trade and Industry and Her Majesty's Attorney General (the Government) from making Regulations under s.2 of the European Communities Act 1972 implementing E.C. Directive 98/43. The injunction was to continue until the European Court of Justice ("ECJ") gives judgment on a reference for a preliminary ruling as to the validity of the Directive. The judge also granted the Tobacco Companies their costs and indicated that the case was fit for two leading counsel and one junior counsel. The judge gave leave to appeal.
2.On the appeal the Government has been represented by Mr Christopher Vajda QC. He submits that the appeal is important because it involves fundamental constitutional issues. Issues which involve the relationship between the courts and the Executive and the Legislature. He also points out that the injunction challenges a major Government and Community policy objective, namely the ending of tobacco advertising and sponsorship. The Government believes this would be overwhelmingly in the public interest.
The Background
3.The history leading up to the decision of Mr Justice Turner can be summarised as follows. On 14 May 1997 it was announced in the Queen's speech that the Government would be taking measures, including legislation, to ban tobacco advertising. On 4 December 1997, the European Union Health Council reached agreement on a common position as to the proposed Directive by a qualified majority vote. On 13 May 1998 the common position on the Directive was approved by the European Parliament. It came into force on 6 July 1998. This was followed by an application on 21 September 1998 by the Tobacco Companies for permission to apply for judicial review to challenge the legal basis of the Directive. Subsequently, on 19 October 1998, the Republic of Germany commenced direct action seeking annulment of the Directive in the ECJ under Article 230 of the Treaty. Other parties brought similar actions. On 30 November 1998, the Tobacco Companies made their application for permission to apply for judicial review. At that time the Government had announced its intention to implement the Directive but no indication had been given as to the method or timing of implementation.
4.On the 10 December 1998 the Government published a White Paper "Smoking Kills" and the first draft Regulatory Impact Assessment. The Government had by then decided to implement the Directive by secondary legislation. If the Directive was valid it was entitled to do this relying on the Directive under s2(2) of the European Communities Act 1972. Mr Justice Turner gave leave to apply for judicial review on 16 December 1998. He also directed the parties to agree the terms of a proposed reference to the European Court of Justice. On 2 February 1999 there was an order made for the reference which included six questions to be answered by the European Court of Justice.
5.On 17 June 1999 a second draft of the Regulatory Impact Assessment was published together with the proposed Regulations. On 30 July 1999 the Tobacco Companies made their application for interim relief which resulted in the order of Turner J of 29 October 1999, which is the subject of this appeal.
6.Just before the hearing of the application for interim relief, on 8 October 1998, the Department of Health announced its final decisions on the Regulations, including proposals for some phasing of the ban on advertising. The proposed date for implementation was 10 December 1999.
7.Turner J had made it a condition of his granting permission to appeal that an application for expedition would be made to this court. That application was granted and this explains why the appeal was heard on 15, 16 and part of 17 November 1998.
8.The Directive obliges Member States to introduce legislation which complies with its terms by 30 July 2001. It is estimated that the ECJ will give its ruling on the validity of the Directive well before that date. The earliest estimated date for the ruling is November 2000. In any event there is therefore going to be at least a year before it will be known whether the Directive is valid. This period could be longer.
Article 100a and the Directive
9.European Community legislation is required to identify the source of the power under which it is made and also state the facts which bring the measure within the power. ( Commission v Council (Generalised tariff preferences) [1987] ECR 1493, 1519 (Para 5)) Here the Directive cites articles 57(2), article 66 and article 100a as being the source of its authority. In argument only article 100a was relied upon. It is common ground between the parties that if article 100a cannot be relied on the Directive is invalid.
Article 100a provides
10.(1) By way of derogation from Article 100 and save where otherwise provided in this Treaty the following provisions shall apply for the achievement of the objectives set out in Article 7a. The Council shall, acting in accordance with the procedure referred to in Article 189b and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.
11.(3) The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection.
12.Article 7a, which is referred to in article 100a, states that the Community should "adopt measures with the aim of progressively establishing the internal market …"
13.The first recital to the Directive records that there are "differences between the Member States, Laws, Regulations and administrative provisions on the advertising and sponsorship of tobacco products" 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 freedom to provide services in this area as well as distort competition, thereby impeding the functioning of the internal market." The second recital states that "barriers should be eliminated and, to this end, the rules relating to the advertising and sponsorship of tobacco products should be approximated, whilst leaving Member States the possibility of introducing, under certain conditions, such requirements as they consider necessary in order to guarantee the protection of the health of individuals".
14.Recital (3) refers to the provisions of article 100a(3) which I have already set out.
15.Article 1 of the Directive states the objective of the Directive is "to approximate the Laws, Regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products".
16.If Article 1 of the Directive accurately sets out the objectives of the Directive, the Directive is manifestly made for a purpose authorised by article 100a of the Treaty.
17.Article 3 of the Directive requires all forms of advertising sponsorship to be banned in the Community. By Article 2 "advertising" and "sponsorship" are given special definitions. "Advertising" is "any form of commercial communication with the aim or the direct or indirect effect of promoting a tobacco product, including advertising which, while not specifically mentioning a tobacco product, tries to circumvent the advertising ban by using brand names, trade marks, emblems or other distinctive features of tobacco products". Sponsorship is "any public or private contribution to an event or activity with the aim or the direct or indirect effect of promoting a tobacco product". Tobacco product is also given a wide definition.
The Tobacco Companies' Contentions
18.Although just looking at the language of the Directive, it appears to fall within the objectives of article 100a, the Tobacco Companies contend that it is invalid because in fact its primary purpose is to harmonise the laws of the Member States for a health purpose; to reduce the promotion of the use of tobacco products and in this way restrict the damage which can be caused by their use. If this is in fact the primary objective of the Directive, it is accepted that the Directive would be invalid since it is common ground that the Treaty does not contain any power to require the...
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