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Administrative Court asks the Court of Justice of the European Union to rule on the validity of the Tobacco Products Directive

04/11/14, EU/Competition

On 3 November 2014, Turner J decided to refer a series of questions to the Court of Justice of the European Union (“CJEU”) concerning the validity of the Tobacco Products Directive (Directive 2014/40/EU). The Tobacco Products Directive is the principal repository of EU tobacco regulation, covering a wide range of matters from the regulation of tobacco product ingredients to a suite of packaging and labelling requirements.

Philip Morris and British American Tobacco have brought separate claims in the Administrative Court in England challenging the validity of the Directive. Both manufacturers contend that the Directive is invalid because the EU Legislature has acted without a valid legal basis, that parts of the Directive are disproportionate, that it delegates too much power to the European Commission and that it infringes the principle of subsidiarity, which requires the EU to refrain from acting where Member States can sufficiently address the EU’s objectives without centralised legislation.

The Secretary of State for Health, who is responsible for implementing the Directive, considers that the Directive is valid, but agreed that the question of its validity should be referred to the CJEU.

Japan Tobacco International and Imperial Tobacco are supporting Philip Morris’ claim as interested parties.

Turner J gave a number of interveners (who were suppliers to the UK tobacco industry and a niche tobacco product manufacturer) permission to participate in the proceedings as ‘parties’, thereby confirming their right to participate in proceedings before the CJEU. He will hand down a reasoned judgment in due course, in which he is expected to distinguish the judgment that he gave on 24 October 2014 in which he refused permission for a Polish association of tobacco growers to intervene in the same proceedings (see here).

The case will now move to Luxembourg, where the CJEU will hear argument from the parties, and from interested Member States and EU Institutions, before ruling on the validity of the Directive.

Philip Morris, a claimant, was represented by Marie Demetriou QC and Daniel Piccinin, instructed by Skadden, Arps, Slate, Meagher & Flom.

BAT, a claimant, was represented by Sarah Ford and David Scannell, instructed by Herbert Smith Freehills.

JTI, an interested party, was represented by David Anderson QC and Victoria Wakefield, instructed by Freshfields Bruckhaus Deringer.

The Secretary of State for Health, the defendant, was represented by Mark Hoskins QC, Sarah Abram and Oliver Jones, instructed by the Treasury Solicitor.

Benkert, an intervener, was represented by Daniel Jowell QC, instructed by Jones Day.

Mane, an intervener, was represented by Martin Chamberlain QC and Fred Hobson, instructed by Hill Dickinson.

Tann, an intervener, was represented by Tim Johnston (appearing unled), instructed by Singletons.

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