JTI Ireland Ltd v Minister for Health

• Jurisdiction: Ireland
• Judge: Mr. Justice Cregan
• Judgment Date: 07 July 2015
• Neutral Citation: [2015] IEHC 481
• Court: High Court
• Docket Number: [2015 No. 2530 P]
• Date: 07 July 2015

BETWEEN

JTI IRELAND LIMITED

PLAINTIFF

AND

MINISTER FOR HEALTH, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

[2015] IEHC 481

Cregan J.

[2015 No. 2530 P]

HIGH COURT

COMMERCIAL

International law – Tobacco Packaging Directive – Art. 267 of the Treaty on the Functioning of the European Union – Referral from Domestic Court to the Court of Justice of the European Union – Validity of EU measure

Facts: Following the initiation of the proceedings concerning a challenge to the Public Health (Standardised Packaging of Tobacco) Act 2015 by the plaintiff, the defendants now sought an order that the Court should refer the following two questions to the Court of Justice of the European Union (CJEU): whether art. 24 (2) of the Tobacco Packaging Directive (TPD2) would be invalid having regard to art. 114 of the Treaty on the Functioning of the European Union (TFEU) and whether the Member States such as Ireland might derive the necessary competence to legislate from other articles of the TFEU if art. 24 (2) of the Tobacco Packaging Directive (TPD2) was held to be invalid.

Mr. Justice Cregan refused to grant orders to the defendants for referring the aforesaid questions to the CJEU. The Court held that under art. 267 of the TFEU, the National Court could refer a question to the CJEU for ruling if it was necessary for the National Court to be able to render its judgment and such a referral should be made when the national proceedings had attained a stage where one could clearly define the legal and factual context of the case so that the relevant information would be available to the CJEU. The Court opined that if an identical or corresponding question was already pending before the Court of Justice, there should not be any haste or need for referral as it would likely delay the proceedings. The Court opined that the National Courts must exercise self-restraint while making referral to the Court of Justice pending adjudication of a similar or substantially the same issue in the Court of Justice for the smooth functioning of the Court of Justice. The Court found that precisely the same question challenging the validity of art. 24 (2) of the TPD2 having regard to art. 114 of the TFEU had already been referred to the CJEU by the High Court of England and Wales and therefore, it would not be appropriate to refer the question to the CJEU as the order of the CJEU in those proceedings would have significant effect to the outcome of the present case. The Court held that the second question being speculative and hypothetical need not be referred at all.

JUDGMENT of Mr. Justice Cregan delivered on the 7th day of July, 2015

Introduction

1 The issue which I have to consider in this application is the defendants' application that the Court should refer certain questions to the Court of Justice of the European Union ('CJEU') to give a preliminary ruling on questions raised in these proceedings. This application is opposed by the plaintiff.

Procedural History

2 The plaintiff is a distributor and supplier of tobacco products in the State. The plaintiff is a member of a leading international tobacco group which has operations in over 70 countries, including Ireland. The group employs over 27,000 people worldwide and the plaintiff employs 90 people in Ireland. The group sells its products in over 120 countries, including Ireland, and the plaintiff is the non- exclusive licensee of Irish trademarks and European Community trademarks in respect of several well- known brands of cigarettes, (including Benson & Hedges, Silk Cut, Winston, and Camel) and pipe tobacco.

3 These proceedings concern a challenge brought by the plaintiff to the Public Health (Standardised Packaging of Tobacco) Act 2015. This Act was passed by the Legislature and signed by the President on 10th March, 2015. The stated purpose of the Act is, inter alia, 'to provide for standardised packaging of tobacco and tobacco products; to give effect in part to Directive No. 2014/40/EU on the manufacture, presentation and sale of tobacco and related products, and to provide for related matters'.

4 Section 1 (3) of the Act provides that it will come into operation on such day as the Minister might appoint. Section 6 of the Act contains transitional provisions and provides that the Act shall not apply to the sale of tobacco products manufactured or released for circulation before 20th May, 2016.

5 The plaintiff issued its plenary summons in these proceedings on 30th March, 2015. An appearance was entered for the defendants on 31st March, 2015. On 13th April, 2015 the plaintiff brought an application to admit these proceedings to the Commercial List of the High Court. This order was made. A statement of claim was delivered on 8th April, 2015, the defence was filed on 11th May, 2015 and the reply to the defence was delivered on 25th May, 2015. Thus the pleadings in these proceedings are closed.

6 The defendants brought this motion on 6th May, 2015. It was made returnable to 11th May, 2015. Affidavits and legal submissions were exchanged between the parties and the matter came before the Court on 30th June, 2015 for hearing.

The nature of the plaintiff's claim

7 In order to set the application for a reference to the CJEU in context, it is necessary to understand the nature and extent of the plaintiff's claim in these proceedings. The structure of the statement of claim is as follows:

Section 1 – The Parties.

Section 2 – EU Competence.

Section 3 – The Tobacco Packaging Directive 2 – (TPD2).

Section 4 – Article 24 (2) of TPD2.

Section 5 – Domestic Legislation.

Section 6 – Competence of Member States.

Prayer for relief.

8 Under section 2, on EU competence, the plaintiff in effect pleads that the EU has exclusive competence to legislate in this area of tobacco packaging.

9 Under section 3, the plaintiff sets out the relevant recitals and operative provisions of the Tobacco Packaging Directive (TPD2).

10 Under section 4, the plaintiff sets out the relevant provisions of Article 24 (2) of TPD2. The plaintiff pleads that Article 24 (2) TPD2 is contrary to the TFEU (Article 114) and also pleads that:

24. 'The validity of Article 24 (2) is already under challenge before the Court of Justice of the European Union (CJEU). A reference to the CJEU in respect of the validity of TPD2 (and in particular Article 24 (2) thereof) was made on 7th November, 2014 by the High Court of England and Wales.....and a decision on the validity of Article 24 (2) is necessary for the resolution of the within proceedings. Two other group companies are an Interested Party to the reference and claim number CO/2969/2014.'

11 I note, therefore, that the plaintiff itself pleads that a decision on the validity of Article 24 (2) of the TPD2 Directive is necessary for the resolution of these proceedings.

12 At paragraph 25 of the statement of claim, the plaintiff pleads as follows:

'The plaintiff claims in these proceedings that Article 24 (2) of TPD2 is invalid as being without legal basis and contrary to the provisions of the TFEU'.

13 The claim made in this section of the Statement of Claim is that Article 24 (2) of TPD2 is invalid because it is contrary to the provisions of the TFEU and in particular, Article 114 of the TFEU. This is the central issue raised in these proceedings. It is clear that where the validity of a Directive is challenged, (having regard to the provisions of the EU Treaties) then that is a matter that can only be decided by the CJEU. It cannot be decided by national courts. Therefore, to the extent that this question is raised in these proceedings, it is clear that a reference is necessary by the national court to the CJEU to decide this question. Indeed both parties are of the view that a decision of the CJEU on the validity of Article 24 (2) is necessary for the resolution of the within proceedings.

14 In section 5 of its statement of claim, the plaintiff sets out a summary of the main provisions of the Public Health (Standardised Packaging of Tobacco) Act, 2015.

15 At paragraph 35 the plaintiff pleads that, apart from faithfully transposing the requirements of TPD2, the defendants do not have the competence to legislate in the field of the labelling and packaging of tobacco products, because the EU has exclusive competence in this area. The plaintiff also pleads that certain sections of the Act go beyond what is required in the Directive and the defendants do not have the competence to so legislate.

16 The defendants have filed a defence, and in addition to the issues raised by the plaintiff, the defendants have also raised an issue that, even if Article 24 (2) of the Directive is found to be invalid by the European Court, there are other provisions in the Treaty under which Member States, including Ireland, have the necessary competence to pass legislation, such as the national legislation in this case.

Summary of the plaintiff's claim

17 Thus, the plaintiff's essential claim can be summarised as follows:

(a) That Article 24 (2) of TPD2 is invalid, having regard to the EU Treaty (and in particular Article 114 TFEU), in that it permits Member States to take further measures in this area when, as the plaintiff contends, the EU has exclusive competence in this area.

(b) If Article 24 (2) TPD2 is invalid, then it follows that Member States have no competence pursuant to Article 24 (2) of the Directive to take any steps in pursuance of TPD2, apart from faithfully transposing the Directive into national law.

(c) If Member States have no such competence then the 2015 Act passed by the Irish Legislature is contrary to EU law.

The questions sought to be referred

18 The defendants have sought to refer three questions to the CJEU. In broad terms these questions can be described as follows:-

(1) The first question is the question of whether Article 24 (2) TPD2 is...