Neutral Citation Number: [2016] EWHC 1169 ... - Judiciary · PDF fileNeutral Citation Number: [2016] EWHC 1169 (Admin) Case No: CO/2322/2015, CO/2323/2015, CO/2352/2015, CO/2601/2015

Neutral Citation Number: [2016] EWHC 1169 (Admin)

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

Date: 19/05/2016

Before :

MR JUSTICE GREEN

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Between :

THE QUEEN

On the application of

(1) BRITISH AMERICAN TOBACCO (UK) LIMITED

(2) BRITISH AMERICAN TOBACCO (BRANDS) INC.

(3) BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED

First Claimants

- and -

SECRETARY OF STATE FOR HEALTH Defendant

And Between :

THE QUEEN

On the application of

(1) PHILIP MORRIS BRANDS SARL (2) PHILIP MORRIS PRODUCTS SA

(3) PHILIP MORRIS LIMITED

Second

Claimants

- and -

SECRETARY OF STATE FOR HEALTH Defendant

And Between :

THE QUEEN

On the application of

(1) JT INTERNATIONAL SA (2) GALLAHER LIMITED

Third

Claimants

Judgment Approved by the court for handing down. Tobacco Packaging

Page 2

- and -

SECRETARY OF STATE FOR HEALTH Defendant

And Between :

THE QUEEN

On the application of

IMPERIAL TOBACCO LIMITED

Fourth

Claimant

- and -

SECRETARY OF STATE FOR HEALTH Defendant

ACTION ON SMOKING AND HEALTH (ASH) Intervener

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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:

Case No: CO/2706/2015:

THE QUEEN

On the application of

TANN UK LIMITED, TANNPAPIER GMBH, BENKERT UK LIMITED, DEUTSCHE

BENKERT GMBH & CO KG (Claimants)

- and -

Judgment Approved by the court for handing down. Tobacco Packaging

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SECRETARY OF STATE FOR HEALTH (Defendant)

KELYN BACON QC and TIM JOHNSTON (instructed by Singleton Solicitors) 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: 10-11th, 14-18th December 2015

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Approved Judgment

Judgment Approved by the court for handing down. Tobacco Packaging

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INDEX

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) BATs 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 Governments 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

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(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

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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