CSNA Company Ltd by Guarantee v Minister for Health and Ors

• Jurisdiction: Ireland
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 18 December 2025
• Neutral Citation: [2025] IEHC 738
• Court: High Court
• Docket Number: Record No.: 2025/344JR

Between:

CSNA Company Limited by Guarantee

Applicant

and

Minister for Health, Ireland and the Attorney General

Respondents

[2025] IEHC 738

Record No.: 2025/344JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (Fees) Regulations 2024 – Standing – Applicant challenging the lawfulness of the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (Fees) Regulations 2024 – Whether the applicant lacked standing to maintain the proceedings

Facts: A new system for licensing the sale of tobacco and nicotine inhaling products was introduced by the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023. Section 18 conferred power on the first respondent, the Minister for Health (the Minister), to prescribe fees for the purposes of an application for a new licence, for renewal of a licence, and for a replacement licence. In exercise of that power, the Minister made the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (Fees) Regulations 2024. The applicant, CSNA Company Limited by Guarantee (CSNA), challenged the lawfulness of the Regulations, insofar as they related to tobacco products, on a number of grounds: (i) the Regulations were unlawful because they failed to comply with the only lawfully permitted purpose of the Act, that is, setting fees which cover the cost of the licensing regime; (ii) the Regulations were unlawful because they pursued a purpose not permitted by the Act, that is, disincentivising the sale of tobacco products; (iii) the Regulations were irrational, because there was no evidence to support the fees set thereby; and (iv) the Regulations were irrational because they were incapable of achieving their apparent purpose. CSNA argued that it had standing to challenge the Regulations in its representative capacity for its members.

Held by the High Court (Mulcahy J) that there was no consistent interest represented by CSNA, and accordingly, no evidential basis upon which it could be concluded that CSNA would be affected, negatively or positively, by the new licensing regime; accordingly, CSNA lacked standing to maintain the proceedings and the proceedings should, therefore, be dismissed on those grounds alone. He rejected CSNA’s argument that the Regulations were unlawful because the licence fees were not fixed by reference to the cost of maintaining the licensing system. He noted that s. 18 of the Act was expressed in terms which suggested that the Minister had broad discretion in determining what is an appropriate fee. Mulcahy J held that the onus was on the CSNA to prove that the Minister has exceeded the limits of that discretion; it had not done so. It was clear to Mulcahy J that the fees fixed by the Regulations were based on the figures contained within a briefing document; that document, therefore, constituted evidence before the Minister when making the Regulations and it was clearly, therefore, not an irrational decision, i.e. a decision unsupported by any evidence. Mulcahy J held that the Regulations would achieve their straightforward purpose of imposing a licence fee on retailers of tobacco products, precisely as required by the Act.

Mulcahy J refused the reliefs sought by CSNA.

Reliefs refused.

Judgment of Mr Justice Rory Mulcahy delivered on 18 December 2025

Introduction

1 . These proceedings concern a challenge to the lawfulness of a statutory instrument, introduced by the first respondent (“ the Minister”), which sets the fees for licences to sell tobacco and nicotine inhaling products.

2 . Under the existing regime, any person who wishes to sell tobacco products is required to register to do so in accordance with section 37 of the Public Health (Tobacco) Act 2002, as amended. A once-off fee of €50 is payable in respect of such registration.

3 . A new system for licensing the sale of tobacco and nicotine inhaling products has been introduced by the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (“ the 2023 Act”). Under the 2023 Act, any person wishing to sell tobacco or nicotine inhaling products is required to apply to the Health Service Executive (HSE) for a licence. Section 18 of the 2023 Act confers power on the Minister to prescribe fees for the purposes of an application for a new licence, for renewal of a licence, and for a replacement licence. Those fees are recoverable by the HSE as a contract debt.

4 . In exercise of that power, the Minister made the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (Fees) Regulations 2024 (“ the 2024 Regulations”). The following fees were prescribed:

• • A fee of €1000 for an application for a licence to sell tobacco products;

• • A fee of €800 for an application for a licence to sell nicotine inhaling products;

• • A fee of €1800 for an application for a licence to sell both.

5 . The same fees were fixed for applications to renew licences. The 2024 Regulations will come into operation on 2 February 2026. In these proceedings, the applicant (“ CSNA”) challenges the lawfulness of the 2024 Regulations on a number of grounds. CSNA's focus is on the 2024 Regulations insofar as they relate to tobacco products.

The applicant's case

6 . In its Statement of Grounds, CSNA describes itself as a company that represents the interests of retailers and newsagents, independent shops and franchisees. It has approximately 1350 members, operating some 1500 stores.

7 . CSNA issued proceedings on 13 March 2025 and obtained leave to apply for judicial review on 27 May 2025. Its Statement of Grounds comprises seven grounds of challenge, as follows:

• i. The First Respondent acted unlawfully and ultra vires the Act by disregarding the lawful purpose of section 18 when enacting the 2024 SI. The effect of the fees prescribed by the 2024 SI for licences and the renewal of licences is to impose an initial and recurring lump sum excise duty on retailers selling these products, regardless of the size of the retailer. The lawful purpose of the First Respondent's power to set licence fees pursuant to section 18 is to provide for the costs to the State and the HSE of administering and enforcing the licensing system in relation to the sale of products covered by the Act.

• ii. The First Respondent acted unlawfully and ultra vires the Act by disregarding the purpose of section 18 of the Act and then unreasonably and irrationally promulgating the 2024 SI which could never achieve that unlawful purpose. In particular, the First Respondent unlawfully intended to impose the equivalent of an additional tax or duty upon the sale of products covered by the Act to disincentivise their consumption, yet failed to acknowledge that the 2024 SI could make no difference to the retail price of the products concerned and, therefore, could not disincentivise their overall consumption.

• iii. The First Respondent acted unreasonably and irrationally when setting the license and renewal fees in the 2024 SI. In doing so, the First Respondent set the fees in a manner that was arbitrary and capricious and without any evidential or methodological basis or connection to the licensing regime being established.

• iv. The First Respondent acted unreasonably and irrationally by making an arbitrary distinction between the licence and renewal fee for the sale of tobacco products and nicotine inhaling products without any basis for that arbitrary distinction.

• v. The First Respondent failed to take account of relevant considerations when setting the licence and renewal fees in the 2024 SI, by falling to acknowledge the fact that the Applicant's members are required to sell tobacco products at a fixed price determined by law.

• vi. The First Respondent acted unlawfully and ultra vires the Act by enacting the 2024 SI, which will have a disproportionate economic impact on smaller retailers compared to larger retailers which amounts to an arbitrary and capricious distinction not authorised by the Act. The effect of the 2024 SI will cause consumers to attend larger retailers instead of smaller retailers and will likely cause the closure of retailers which is not a lawful purpose envisioned by the Act.

• vii. The First Respondent acted unlawfully and ultra vires the Act by enacting the 2024 SI, which will have a disproportionate economic impact on the Applicant's members right to earn a livelihood and, in particular, in relation to smaller retailers who are less able to absorb the exorbitant increase in costs.

8 . CSNA's primary argument, therefore, is that it was not permissible for the Minister to fix fees other than for the purpose provided by the 2023 Act. It contends that this purpose was, in effect, to cover the State's costs in administering and enforcing the new licensing regime. CSNA also contends that the fees set were arbitrary and capricious and were fixed without any evidential or methodological basis.

9 . The Statement of Grounds is verified by an affidavit of Mr Vincent Jennings, the CEO of CSNA. He describes the applicant and explains the retail market for tobacco products in Ireland, noting that 79.2% of the total retail price is made up of taxes (excise duties and VAT). He notes that because of the way excise duties on tobacco products are charged, retailers will not be able to increase prices to offset the cost of a licence, i.e. the cost cannot be passed on to the consumer, it must be borne by the retailer. He sets out the background to the introduction of the new licensing regime, and the applicant's attempts to engage with the first respondent. He avers that the applicant has “ no idea how the Minister for Health calculated the sums contained in the 2024 SI, or what methodology he used if any… It is hard to not draw the inference that these exorbitant figures were simply plucked out of the air and are inherently arbitrary.”

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