What “mutual recognition” really entails: analysis of the Prime Minister's Mansion House Brexit policy speech

Professor Stephen Weatherill, Somerville College, University of Oxford

Theresa May’s speech at Mansion House in London on 2 March 2018 has attracted a torrent of comment. It has been greeted as, on the one hand, shallow and unrealistic and, on the other, as the most thoughtful contribution to the debate offered so far by a member of this government. In truth both descriptions are accurate. I want here to focus on Mrs May’s aspiration to promote “mutual recognition” as a means to manage the future economic partnership she envisages between the EU and the UK.

In her portrayal of the treatment of goods after Brexit, Mrs May insists that “both the UK and the EU have a strong commercial interest in preserving integrated supply chains that have built up over forty years”, and she envisages “that trade at the UK-EU border should be as frictionless as possible”. Echoing David Davis’s speech in Vienna on 20 February she wants to “ensure that, as now, products only need to undergo one series of approvals, in one country, to show that they meet the required regulatory standards”. How to achieve these aims and visions? Mrs May declares that “we will need a comprehensive system of mutual recognition”.

Much of what passes for “negotiation” on the UK side since the despatch of the Article 50 letter of withdrawal in March 2017 has involved a desire to retain the benefits of EU membership while shrugging off the status and responsibilities of membership. But when Mrs May appeals for “a comprehensive system of mutual recognition” she is going still further. She is not asking for something that applies within the EU. She is asking for something that even EU Member States do not expect of each other. A “comprehensive system of mutual recognition” is not found within the EU. Mrs May is asking that the UK be treated better than a Member State of the EU.

Mutual recognition in primary EU law is most prominently found in the area of free movement of goods, persons and services, but it is not absolute mutual recognition. Instead it is conditional or non-absolute mutual recognition. That means that where something is good enough for the market of one Member State, it is to be treated as good enough for the market of all the other Member States – unless the target (or host) State can show a good reason why it should be entitled to rely on its stricter standards to exclude something that is acceptable elsewhere in the EU. The reservation unless is structurally crucial in the law of the EU’s internal market. A State is not inevitably obliged to open up its market to a product or service which does not conform with local laws. It may appeal to its tougher standards of health protection, its more assiduous concern for consumer protection or its particular fastidiousness in the area of environmental protection – and it will need to be judged, ultimately by a Court, whether the State has a strong enough justification of this type to place obstructions in the way of the impulse towards market integration. National rules, practices and standards that impede inter-state trade are in this way routinely put to the test.

Protectionism and reliance on anachronistic rules that have no place in an integrated European market will fail the test and such objectionable rules must then be disapplied. But there is room for sincerely and well-targeted measures to pass the test, and to remain in force as non-tariff barriers to trade which serve an interest that is shown to rank higher than trade liberalisation. This is plain from the Treaty on the Functioning of the European Union, which does not impose an unconditional rule of freed cross-border trade, and it is embedded too in the Court’s famous elaboration of the basic Treaty norms governing free movement, its Cassis de Dijon principle, which equally imposes only a conditional or non-absolute requirement of mutual recognition in the EU internal market.

So primary EU law imposes something less than the “comprehensive system of mutual recognition” to which Mrs May aspires. If she imagines that the EU will agree automatically to admit UK goods and services into its internal market simply because those goods and services comply with UK law, then she is imagining a model which is not even available within the EU. And it is utterly unrealistic to imagine it will be on offer to a third country.

Mutual recognition also deserves assessment at the level of EU secondary legislation – the vast number of measures, most of them Directives but some of them Regulations, which provide the legislative platform on which is built the EU’s internal market. The EU’s Treaty rules on free movement combine with the legislative acquis on harmonisation within the internal market and on the regulation of particular sectors to produce a dense and intricate network of rules which reflect the liberalisation of markets within the EU but also the regulation of those markets by the EU.

But there is no “comprehensive system of mutual recognition” here – at least not in the shallow description offered by Mrs May. The point of these rules is to establish EU rules, which are then implemented at national level. This generates a common system apt to release the advantages of an integrated trading space that transcends the limits of national political boundaries. On this model Member States regulate in order to achieve the same agreed common purposes – they do not show mutual recognition of each other’s different choices and techniques. Across the whole wide sweep of EU rule-making there is a common core of agreed EU standards, which all participants must meet. Moreover, the application of those rules is secured within tightly defined institutional and constitutional constraints. The EU is not simply a system of rules, it is a system too that involves the oversight of the Commission, the place of sector-specific agencies, the authority of the Court of Justice and the everyday involvement of national courts and administrative agencies. Rules – but also supervision, administrative co-operation, interpretation and enforcement too.

There is, of course, detailed sectoral variation, both in the particular intensity and shape of the rules adopted by the EU and in the scope permitted for State action even in areas where the EU has intervened. But the general picture is plain. Whether one is looking at the authorisation of medicines or the prohibition of unfair common commercial practices, the regulation of professional qualifications or the administration of the European Arrest Warrant, working time or environmental impact assessment, the model is visibly similar – there is a common foundation of EU rules on which all the Member States rely, and this is supported by a dense institutional network. This is not unconditional mutual recognition of difference. It is managed mutual recognition of carefully circumscribed difference.

It is remote from Mrs May’s “comprehensive system of mutual recognition”.

To be fair, awareness of this background is not wholly absent from Mrs May’s speech. She speaks of commitments that UK and EU regulatory standards would remain “substantially similar in the future”; she adds that the UK might “remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries”. This jars with the frustratingly glib slogan earlier in the speech according to which Mrs May claims that “the referendum … was a vote to take control of our borders, laws and money”, but it might be generously interpreted as an admission that taking back control will require a more sophisticated appreciation of the virtue of multilateral action than the remorselessly unilateral tone of much of the case for Brexit has been hitherto willing to concede. And indeed the speech was reported, perhaps with the impetus of a little behind-the-scenes spin, as mapping a route to a more realistic relationship with the EU than some go-it-alone Brexiters have urged – “May tells Eurospectics to face facts”, proclaimed the lead story on the front page of the Financial Times the day after the speech.

More realistic, perhaps – but the problem with the speech was that it was not realistic enough.

In part this is because of the persisting contagion of cherry-picking, but the deeper problem of a speech which includes an aspiration to a “comprehensive system of mutual recognition” is that this completely neglects the very nature of the EU. The EU is a rules-plus system. It is based on common rules but also common institutions and common constitutional principles. It is far more intricate than Mrs May allows.

Mrs May accepts “the need for binding commitments – for example, we may choose to commit some areas of our regulations like state aid and competition to remaining in step with the EU’s”. Elsewhere she is softer in her promises. The UK will need to make a “strong commitment” that its regulatory standards will remain as high as the EU’s. (Here too the media was evidently briefed on the gap between “binding” and “strong” commitments). In the matter of workers’ rights or the environment, “the EU should be confident that we will not engage in a race to the bottom in the standards and protections we set”.

But this is not good enough to generate the trust that constitutes the necessary underpinning of frictionless trade in the internal market! The EU’s model of mutual recognition demands much more, both in the binding character of the rules and in the supporting institutional and constitutional architecture. Failure to accept this necessary starting-point leads Mrs May to embrace unrealistic expectations. On services, she says that “given that UK qualifications are already recognised across the EU and vice versa – it would make sense to continue to recognise each other’s qualifications in the future.” In the matter of transfrontier broadcasting she aspires to “creative options … including mutual recognition”. On financial services “our goal should be to establish the ability to access each other’s markets, based on the UK and EU maintaining the same regulatory outcomes over time”. But the EU’s approach to mutual recognition goes far deeper than mere possession of the same rules.

Everything that Mrs May says – about agencies and regulators, about data protection and energy co-operation, about Euratom and transport, about judicial co-operation and science, and so on - assumes a UK that enjoys a high degree of independence from the EU’s rules and especially from its institutions, yet is able to dip in here and there as an associate member according to specially crafted arrangements. But although EU is built on rules and it is built on trust, it is also built on institutional and constitutional frameworks that underpin those rules and verify that trust is warranted. This is what the Commission has lately taken to describing as the EU’s “ecosystem”.

This is what the EU is determined to defend; this is what the UK has chosen to quit. Mrs May’s speech does not come close to recognising, still less to explaining, the magnitude of the changes that are looming in consequence. Her speech asserts that the UK “will not accept the rights of Canada and the obligations of Norway”, the shabby politician’s trick of rejecting a suggestion that absolutely no one has advanced, but she is perilously close to asking for the obligations of Canada and the rights of Norway.

One of the relatively few concrete observations in Mrs May’s speech which looks beyond mutual recognition of rules also to acknowledge the institutional consequences concerns financial services. She notes “the highly regulated nature of financial services, and our shared desire to manage financial stability risks” and so accepts that “we would need a collaborative, objective framework that is reciprocal, mutually agreed, and permanent and therefore reliable for businesses.” Quite so! And this invites the exasperated retort – but that is exactly what you have right now! How illuminating that when, directly after the speech, Mrs May was asked by a journalist whether Brexit is “worth it”, she laughed nervously and said “we won’t think again on Brexit”, and studiously avoided the question. “A collaborative, objective framework that is reciprocal, mutually agreed, and permanent and therefore reliable for businesses” is what the EU delivers. Appeal to the language of “mutual recognition” conceals the density and the intensity of the obligations that are required to generate trade integration on the truly deep and special scale that the EU’s internal market has achieved. Mrs May has belatedly embarked on a journey which accepts that leaving the EU entails difficult choices and unavoidable harm, but she has a long distance to travel yet to come fully to terms with the consequences.

Barnard & Peers: chapter 27

Art credit: facto-facts

Minimum Alcohol Pricing is Appropriate & Necessary: Scotch Whisky Association v Lord Advocate [2017] UKSC 76

Angus MacCulloch, Law School, Lancaster University (@AngusMacCulloch)

Lord Mance has handed down the long awaited judgment in SWA v Lord Advocate in the UK Supreme Court finally dismissing the SWA’s appeal, and permitting the Scottish Government to implement its Minimum Unit Pricing (MUP) policy in relation to retail alcohol sales. The scheme to introduce a MUP of £0.50 per unit, under the Alcohol (Minimum Pricing)(Scotland) Act 2012, has been delayed for 5 years by this legal challenge which characterised the scheme as being contrary to EU law; in that it was contrary to both Article 34 TFEU, as it was a measure having equivalent effect to a quantitative restriction on trade, and that it was contrary to the bar on price fixing under the Single CMO Regulation EU/1308/2013 covering wine.  

This is the fourth, and final, substantive judgment in this litigation. At first instance the Outer House of the Court of Session found MUP to be lawful, [2013] CSOH 70, and after receiving a response to a preliminary ruling from the Court of Justice of the EU, Case C-333/14 EU:C:2015:845, the Inner House, [2016] CSIH 77, also upheld the lawfulness of MUP. The SWA’s appeal was perhaps inevitable, but after a hearing in July 2017, the final judgment has largely confirmed the findings of both Scottish courts that the policy could be justified on the basis of the protection of public health.

By the time the case reached the Supreme Court it was largely settled that MUP could be characterised as a measure having equivalent effect to a quantitative restriction under Art 34 TFEU, and would be contrary to the Single CMO Regulation, but any restriction contrary to those provisions could be justified on the basis of public health protection. The majority of the discussion in the Supreme Court surrounded the proportionality of MUP; was there an alternate measure which could achieve MUP’s aim but which be less restrictive of trade or competition?

The Aim and Assessment of the Measure

Much of the Supreme Court judgment contains an, at times detailed, analysis of the public health evidence presented to justify the introduction of MUP. The CJEU addressed the appropriate time frame for the assessment of a measure and Lord Mance similarly adopted a permissive attitude to the question. Flexibility was given to allow the consideration of the most recent health studies, and the respondent, the Scottish Government, was permitted, at [28], to:

‘refine the aims advanced and to demonstrate that, on the material now available, the proposed measure is justified, even if it only meets an aim which is narrower than, but still falls within the scope of those originally advanced’.

Both the AG and the CJEU drew attention to the ‘two fold objective’ (CJEU [34]) of MUP, in relation to problem drinking and the general consumption of alcohol, but this flexibility allowed the Scottish Government to refocus their argument on what the new evidence showed to be the most important benefits of MUP, in relation to problem drinking, and away from the issues of general consumption. That was to their advantage when as it was seeking to justify a more targeted measure - MUP - over a more general one - increased excise duty.

The Test of Proportionality

Lord Mance opened with a consideration of the guidance set out by both AG Bot and the CJEU in relation to justification and the proportionality of restrictions under EU Law. After setting out sections of the AG’s Opinion Lord Mance characterised his approach as being a three part test: is the measure i) appropriate, ii) necessary, and iii) a balancing of the restrictive effects of the measure as opposed to possible alternatives [14]. In his assessment of the CJEU’s ruling on the question of proportionality Lord Mance found the CJEU’s test to be somewhat narrower, only relying on the first two limbs, although he did recognised that the CJEU considered some aspects of third limb within ‘necessity’. On this question of the third limb, or ‘proportionality stricto sensu’, Lord Mance posed the following rhetorical question, at [47]:

‘can it be that, provided an objective is reasonable and can only be achieved in one way, it is irrelevant how much damage results to the ordinary operation of the EU market?’

This task was described as being a comparison, ‘between two essentially incomparable values’ – health and the market [48]. It was also stressed that, ‘it was not for any court to second-guess the value which a domestic legislator may decide to put on health’ [48]. This rejection of a ‘balancing’ approach between the competing values of health and the market was important. It reduced the need for the Scottish Government to produce compelling economic evidence of the impact of MUP on future markets, but, more importantly, because it did not compel the court to weigh up, ‘the number of deaths or hospitalisations … [which were] “proportionate to” the degree of EU market interference’ [48].

The final decision on proportionality – after consideration of the new evidence and argument before the Supreme Court – was clear.

‘A critical issue is, as the Lord Ordinary indicated, whether taxation would achieve the same objectives as minimum pricing. … [T]he main point stands, that taxation would impose an unintended and unacceptable burden on sectors of the drinking population, whose drinking habits and health do not represent a significant problem in societal terms in the same way as the drinking habits and health of in particular the deprived, whose use and abuse of cheap alcohol the Scottish Parliament and Government wish to target. In contrast, minimum alcohol pricing will much better target the really problematic drinking to which the Government’s objectives were always directed and the nature of which has become even more clearly identified by the material more recently available’ [63].

This conclusive finding that MUP is the most effective way of targeting a particular pattern of problem drinking in Scotland reflects the same analysis of the evidence by the Lord Ordinary and Lord President in the Court of Session.

The other key point that Lord Mance went on to make concerned the respective roles of the Scottish Parliament, in setting health policy priorities, and the court, in assessing the proportionality of a measure. As the ‘balancing’ approach, suggested by AG Bot, had ready been rejected it is perhaps not surprising that Lord Mance restricted the role of the court.

‘the Scottish Parliament and Government have as a matter of general policy decided to put very great weight on combatting alcohol-related mortality and hospitalisation and other forms of alcohol-related harm. That was a judgment which it was for them to make, and their right to make it militates strongly against intrusive review by a domestic court’ [63].

But in perhaps the most important passage Lord Mance continued:

‘That minimum pricing will involve a market distortion, including of EU trade and competition, is accepted. However, I find it impossible, even if it is appropriate to undertake the exercise at all in this context, to conclude that this can or should be regarded as outweighing the health benefits which are intended by minimum pricing’ [63].

Given the strength of that conclusion it is difficult to see a circumstance in which a UK court presented with clear evidence of prospective health benefits from an intended public health intervention, which is predicted to prevent mortality and hospitalisations, would decide that such a measure is a disproportionate intervention.

On Evidence

The Supreme Court’s heavily reliance on the evidence base behind the adoption of MUP is unsurprising. The CJEU stressed the importance of evidence to justify a measure in both the SWA reference and Case C-148/15 DPV. There is, however, no better example of the extent to which evidence can become important, but also a significant burden (as indicated at 411) to a court, than BAT v Dept of Health [2016] EWHC 1169 (Admin).

Although the Supreme Court was heavily reliant on the wealth of modelling evidence presented to it, it did recognise that much of the evidence was, as the AG described it, ‘somewhat experimental’, and that it would difficult ‘predicting the precise reactions of markets and consumers to minimum pricing’ [62]. In that regard the Lord Mance appears to have taken comfort that the proportionality of the measure in the longer term would be assured as the Scottish Government had built a sunset clause into the Act, and that a formal review of the actual effects of the legislation would be required or it would cease to be in force after six years.

Conclusions

I have been following this case for a very long time and my initial reaction is that it is a good conclusion. The Supreme Court has made it clear, much more so than the CJEU did, that a convincing and well evidenced public health argument should, and hopefully now will, win out over trade or competition concerns. The proportionality test still has teeth. A Member State seeking to justify a measure must be clear about its aim, and it must have a good evidence base to explain and justify the effectiveness of the intervention it has chosen. But it now appears that the courts, in the UK at least, will now give some deference to the policy choices of the legislature if they stand up to that scrutiny.

It is not the courts role to second-guess policy in these areas, but I am sure that we will see new challenges if other jurisdictions attempt to introduce similar policies. Other administrations may see this case as clearing the way, but they should be careful as the decision in this case was tied to a detailed analysis of a particular Scottish problem. It is not the case that the same intervention will be appropriate or necessary everywhere else.

Barnard & Peers: chapter 15, chapter 16

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The purely internal situation in free movement rules – Some clarity at last from the ECJ

Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

The Court of Justice’s judgment in Ullens de Schooten, rendered yesterday, is a very welcome development. The Court’s Grand Chamber has put some order in a traditionally chaotic and obscure area of the case law: the definition of a purely internal situation in free movement cases referred by national courts in the context of preliminary reference proceedings. It was a life or death issue for the success of the case, because depending on whether the claims of the applicant – who sought damages on the grounds that he was wrongly convicted of running an illegal laboratory – proved to have a trans-frontier link or not, he or she would benefit, or not, from free movement rules. After many years of disorderly case law, mostly in chambers of five judges, the Grand Chamber has taken the reins and provided clear guidance.

In a nutshell, Ullens de Schooten confirms in general terms what the Court seemed to be doing in the past: as a rule, transfrontier links with free movement rules are quite flexible and easy to prove, but when there is no link whatsoever, then only in four different scenarios a national judge will be able to rely on free movement rules. The scenarios are the following:

First, when it is not inconceivable that nationals established in other Member States have been or are interested in making use of those freedoms for carrying on activities in the territory of the Member State that had enacted the national legislation in question, and, consequently, the legislation, applicable without distinction to nationals of that State and those of other Member States, was capable of producing effects which were not confined to that Member State. This is the Blanco Perez y Chao situation.

Second, when the referring court makes a request for a preliminary ruling in proceedings for the annulment of provisions which apply not only to its own nationals but also to those of other Member States, and the decision of the referring court that will be adopted following the Court’s preliminary ruling will also have effects on the nationals of other Member States. This is the Libert situation.

Third, when free movement rules may prove to be relevant in a case confined in all respects within a single Member State, where national law requires the referring court to grant the same rights to a national of its own Member State as those which a national of another Member State in the same situation would derive from EU law. This is the Guimont situation.

Fourth, cases in which, although the facts of the main proceedings are outside the direct scope of EU law, the provisions of EU law have been made applicable by national legislation, which, in dealing with situations confined in all respects within a single Member State, follows the same approach as that provided for by EU law. This is the Dzodzi situation.

It appears from yesterday’s judgment that the Court is putting the burden of proving the existence of any of the enumerated situations on the referring judge. This appears to be the case, because the Court makes in paragraph 55 a very specific reference to article 94 of the Rules of Procedure, a provision that lists the contents that must be included in an order for reference pursuant to Article 267 TFEU. In other words: the Court will be happy to apply any of the four exceptions to the purely internal situation rule, but only if national courts make an effort to explain why the referred case falls under any of these four situations. If the national court simply makes no effort whatsoever, then the Court will do what it did yesterday in Ullens de Schooten: declare the absence of a transfrontier link and the lack of arguments justifying the application of any of the four situations.

This is good news for lawyers that deal with free movement rules, particularly before national courts, but it does not solve the genuine problem. In fact, the failings of the previous case-law were not only to be found in a lack of consistency, but also in the difficulty to apply the standards that have now been blessed by the Grand Chamber. Take the Blanco Pérez y Chao exception: to argue that it is not inconceivable that nationals established in other Member States have been or are interested in making use of free movement rules is not much help, because it is difficult to imagine a case in which a national from another Member State may not, in hypothesis, “be interested” in making use of free movement. The Opinions of Advocates General Wahl and Kokott in the cases of Venturini and ETI, respectively, show how tricky this criterion can be.

So the Court has taken an important step, but probably not enough to provide all the much-needed clarity that free movement rules still need. But it’s a first step in the right and very welcome direction.

The judgment also speaks highly of the Grand Chamber’s role as a forum in which to deliver clear guidance over past and erratic case law. This has always been the role of the Grand Chamber, but it sadly lost its way in the past years. For too long a time Grand Chamber judgments were cryptic, sometimes contradictory and lacking a lot of much needed legal reasoning. Things have improved in the past year, and this must be the result of the new President, who has voiced his priorities in public, among which stands out the need to recover the role of the Grand Chamber as a forum to set guidance and principle. Ullens de Schooten might be a little frustrating, but it does provide much more than the Grand Chamber of the past provided to its infinitely more frustrated readers.

*This post previously appeared on the Despite our Differences blog

Barnard & Peers: chapter 11, chapter 12, chapter 13, chapter 14, chapter 15

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Evidencing the Effectiveness of Health Interventions in Free Movement Cases

Angus MacCulloch, Lancaster University Law School

Two judgments on Articles 34/36 TFEU (concerning the free movement of goods) handed down by separate courts in the same week give stark examples of the importance of having a good evidence base before a State seeks to justify a public health intervention in the market. The first example was the judgment of the CJEU in Case C-148/15 Deutsche Parkinson Vereinigung, a preliminary reference considering the compatibility of a German measure setting fixed prices for prescription-only medicines. The second being the judgment of the Inner House of the Court of Session in Scotland in Scotch Whisky Assoc v LA [2016] CSIH 77, where the court upheld the Lord Ordinary’s finding that the Scottish Government’s plans to introduce Minimum Unit Pricing (MUP) for alcohol were not contrary to Art 34 (following the CJEU reference in Case C-333/14). Both measures involved health justifications for pricing restriction measures that fell foul of Art 34, but the results were very different.

Fixed Price Prescriptions

The German measure in DPV fixed the prices of all prescription-only medicines in Germany; restricting the ability of pharmacists to provide products at a discounted price. DPV, a self-help organisation for Parkinson’s disease sufferers, had set up an arrangement with a Dutch mail order pharmacy DocMorris (yes, that DocMorris) to put in place a bonus system for its members. That bonus system was challenged. The scheme was found to infringe Art 34 TFEU as mail-order pharmacies are limited in the services they can offer, and the ability to price competitively is the most likely means they have to access the German market directly [24]. The Court then turned to the argument that the system of fixed prices was justified in order to ‘ensure a safe and high quality supply of medicinal products’ [32]. The argument was that without set prices pharmacies may enter into ‘ruinous price competition’ which might result in the closure of physical pharmacies in rural or underpopulated areas. It was argued those pharmacies alone were well suited to offering safe high quality supplies, tailored advice, and effective checks on medicines [33]. At [35] the Court applied the test it set out in the Case C-333/14 SWA reference:

‘The reasons which may be invoked by a Member State by way of justification must thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State, and by specific evidence substantiating its arguments’.

It was this final point on ‘specific evidence’ that proved to be crucial in the case, as the Court went on to explain in [36].

‘that court must examine objectively, through statistical or ad hoc data or by other means, whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods’.

In the subsequent paragraphs the Court went through the submissions of the parties and suggested that there was ‘no evidence to substantiate the contention’ that the scheme was necessary to ensure a uniform supply of prescription-only medicines [37]. In fact nothing before the Court suggested that without the system mail order pharmacies, competing on the basis of price, would threaten essential services, such as emergency care or providing activities in the general interest; in fact competition might encourage traditional pharmacies to improve such services [39-40]. The assertion of the Court at [42] is perhaps the most telling:

‘it should be noted that the existence of a genuine risk to human health must be measured, not according to the yardstick of general conjecture, but on the basis of relevant scientific research’.

Because of the failure to provide convincing evidence of the effectiveness of the measure the Court found that it had ‘not been shown to be an appropriate means of attaining the objectives relied on’ [45]. It had therefore fallen at the 1st hurdle in the two-part test. As it was not shown to be ‘appropriate’, there was no need to consider if it was ‘necessary’.

Minimum Unit Pricing

The Inner House (IH) in SWA were tasked with applying the same two-part test, but this time the result was very different. The court’s summary of the evidence presented by the Scottish Govt runs across many paragraphs, [125]-[143], citing numerous studies, both domestic and international in scope. The Petitioner challenged the conclusions and methodology of a number of those studies, but the Scottish Government argued that the State had discretion and it was not unreasonable that it would ‘prefer one body of evidence the other, so long as the information which supported the choice was cogent’ [130]. As the IH was acting in an appeal it confined its review, in the most part, to confirming that the Lord Ordinary, in the Outer House, had correctly applied the law. The first important, and perhaps the most important, question was to confirm that the Lord Ordinary had identified the correct aim of the legislation. Both the AG and CJEU, in the reference, had noted that the legislation appeared to have a dual objective, whereas the Lord Ordinary had focused on a particular aim; the reduction of alcohol consumption by harmful and hazardous drinkers. The IH found that the Lord Ordinary’s particular view was identical to that of the CJEU. That is perhaps surprising, as many commentators had seen a different emphasis in the CJEU; suggesting that it had struck some form of balance between the narrow goal of dealing with harmful and hazardous drinkers, and the wider goal of reducing general alcohol consumption. The IH implicitly rejected that interpretation of the judgment.

In its examination of the appropriateness of the measure the IH noted the extent of the problem with alcohol consumption; the ‘societal, family, and personal effects of excessive alcohol consumption in Scotland are difficult to over-estimate’ [178]. This assertion was based on the ‘raft of statistical material [which] was produced’ [180]. It also recognised the clear view that the policy would target harmful and hazardous drinkers. It noted that it was possible to attempt to rebut figures used in support of the measure, or counter the conclusions drawn by the Govt, but that ‘there was and is ample objective material to support the proposition’ [182], and, at [183], that:

‘the Lord Ordinary cannot be faulted in finding that there was evidence from which it could be inferred that minimum pricing was an appropriate method of securing the objective by tackling the specific consumption of cheap alcohol’.

When turning to the proportionality of the measure the IH considered the Petitioners preferred measure, the increase of general taxation, which they argued would be ‘as effective’ as MUP. But that argument was rejected; ‘[t]he fundamental problem with an increase in tax is simply that it does not produce a minimum price’ [196]. The IH pointed towards evidence that retailers have sold below cost or absorbed, or off-set, tax increases. Also that price increases in the lowest cost products would ‘produce a greater reduction in sales than across the board price increases’ [199], as trading down to lower cost products was not possible. In fact a general taxation increase would have, ‘disproportionate, undesirable and unnecessary effect on moderate drinkers, who do not generally represent a significant problem in societal terms’ [200]. Finally, at [204], the IH addressed the choice of 50p per unit:

‘Such a figure, on the material produced, will reduce consumption amongst harmful and hazardous drinkers in that quintile of the population whose health is affected most by the consumption of cheap alcohol. The benefits of this are well documented’.

On that basis the Inner House, upheld the findings of the Lord Ordinary and refused the reclaiming motion.

One interesting feature of the case before the IH was that the CJEU had made it clear in its preliminary reference that a domestic court should address the proportionality of the measure at the time it gives its ruling, not at the time the measure was adopted. As the original pleadings were lodged in 2012 a significant amount of new evidence and policy material had become available in the intervening period; including new evidence since the CJEU judgment in the reference was handed down in December 2015. The IH took note of the evidence that was considered by the Lord Ordinary, and the subsequent proceedings, and decided that it was in the interests of justice that any pertinent new material should be considered. But it stressed that the new information would only be significant if it was such that it would have altered the Lord Ordinary’s view of the facts. It was apparent that the new evidence merely added to the exiting body of evidence that supported the effectiveness of MUP as an intervention.

Conclusions

In a series of recent decisions, including, for example, Case C‑639/11 Poland & Case C‑61/12 Lithuania, the CJEU has begun to stress the importance of evidence to support an attempt to justify a restriction on free movement. In DPV we see that requirement given greater emphasis, and a new focus on the type of evidence that will be required. It is not sufficient for a member State to rely on mere assertion or conjecture. They will have to produce more. The Court’s preference is clearly for hard statistical or scientific evidence, although it will accept other forms. Domestic courts are charged with ensuring that the State has good evidence to support the appropriateness and proportionality those measures. The judgment of the IH shows how that analysis can be undertaken. It also makes clear that the analysis of proportionality is not an event, rather a process. If a policy stands or falls by its evidence, it must therefore be the case that changes in the evidence base can alter whether that measure is ‘appropriate’ and/or ‘necessary’ over time.

Barnard & Peers: chapter 12, chapter 16

Art credit: “Beer Street and Gin Lane”, William Hogarth

AG Kokott rejects challenges to the validity of the Tobacco Products Directive – implications for standardised packaging legislation in the Member States?

Jonathan Griffiths, Reader in Intellectual Property Law, Queen Mary University of London

The Tobacco Products Directive (Directive 2014/40/EU, revising Directive 2001/37/EC) imposes stringent controls on the marketing of tobacco products. It introduces, inter alia, a requirement for cigarettes and hand-rolling tobacco to carry more prominent picture and text health warning, further regulatory controls on the marketing of tobacco products (including e-cigarettes) and a prohibition on the marketing of tobacco products with “characterising flavours” (including menthol cigarettes).

On 23^rd December, Advocate General Kokott delivered her Opinions in three cases concerning the validity of various provisions of the Directive. In (C-358/14) Republic of Poland v Parliament &Council, Poland seeks annulment of the Union-wide prohibition on menthol cigarettes. Both other cases are requests for a preliminary ruling made in judicial review proceedings by the High Court of England and Wales. (C-477/14) Pillbox 38 (UK) Ltd was referred in a case concerning the domestic implementation of the Directive’s rules concerning e-cigarettes. In the national proceedings in (C-547/14) Philip Morris Brands SARL, in a challenge described by the Advocate General as “a kind of general onslaught”, tobacco companies call into question the domestic implementation of several of the Directive’s provisions. In all three Opinions, the Advocate General advises the Court comprehensively to reject the challenges to the Directive’s validity.

This blogpost focuses on the Opinion in Philip Morris Brands SARL. It outlines the Advocate General’s conclusions on the various questions referred by the High Court and then move on to reflect on that Opinion’s potential implications for current disputes concerning the introduction of legislation requiring fully standardised packaging for tobacco products by some Member States (notably, the United Kingdom, Ireland and France).

(C-547/14) Philip Morris Brands SARL

Phillip Morris (and British American Tobacco) (“the tobacco companies”) brought a claim for judicial review against the Secretary of State for Health, seeking to prevent the implementation of the Directive.  They challenge the Directive on a variety of grounds. They claim, first, that Art 114 does not provide an adequate legal basis for several provisions of the Directive. Secondly, they argue that the Directive violates the principle of proportionality, particularly when viewed in the light of the Union legislature’s obligation to respect their fundamental rights under the EU Charter of Fundamental Rights. Thirdly, they argue that the Directive improperly delegates certain powers to the Commission and, as a result, violates Arts 290 and 291 TFEU. Finally, they claim that the Directive breached the principle of subsidiarity.

While the Secretary of State considers the Directive to be valid, he took the view that the Court of Justice had exclusive jurisdiction to assess its validity. In such circumstances, the High Court simply referred a list of questions concerning the companies’ challenge to the Court of Justice for a preliminary ruling.

Admissibility

Palpably irritated by some aspects of the reference, Advocate General Kokott advised the Court that, in her view, several of the referred questions are inadmissible. A number of the referred questions concern the companies’ challenges to those provisions of the Directive which provide latitude for Member States to adopt more stringent national tobacco control measures than those set out under the Directive (including “standardised packaging” under Art 24(2)). In the absence of the actual adoption of any national measures, the Advocate General considered that, such questions are hypothetical. [37]-[43]. Secondly, several of the referred questions relate to powers delegated to the Commission under the Directive. However, the proceedings before the national court concern only the United Kingdom’s intention and duty to implement the Directive and therefore any questions concerning the Commission’s role are also inadmissible at this stage. [44]-[47]. Thirdly, the national court had raised certain questions about the compatibility of the Directive with the principle of subsidiarity. However, the nature of any such alleged incompatibility was not explained at an adequate level of detail and such questions were therefore, save in one limited respect, also inadmissible. [48]-[51]. Despite the fact that the Advocate General considered these referred questions to be inadmissible, she went on to provide her views on their substance in the alternative (see below).

Even where admissible, the referred questions did not escape criticism. The Advocate General was particularly concerned that the High Court had generally provided a very limited description of the relevant arguments relating to the questions referred [32]-[34]. In effect, the national court appears to have had done little more than convey the text of the tobacco companies’ challenge without making any significant attempt to come to its own view on the various questions. In noting that the companies’ claims were “reasonably arguable”, the national court had done the “absolute minimum” necessary to render the remaining questions admissible [21]-[30].

Art 114 TFEU as legal basis for provisions of the Directive

In a well-established formula, the Advocate General initially noted that recourse to Article 114 TFEU as the legal basis for Directive 2014/40 could not be called into question simply because, in addition to improving the functioning of the internal market for tobacco and related products, the Directive also pursued a high level of health protection as a goal. [56] She then went on to assess each challenge under Art 114 TFEU in turn. They focused on provisions of the Directive which (i) prohibit the marketing of tobacco products with a characterising flavour (Art 7); (ii) regulate the labelling and packaging of tobacco products (Arts 8-16);  (iii) grant Member States freedom to introduce further standardisation of the packaging of tobacco products (Art 24(2)) and to prohibit certain categories of tobacco product for reasons relating to the specific situation in a Member State (Art 24(3)); (iv) give Member States the option to prohibit cross-border distance sales of tobacco products to consumers (Art 18(1)); and (v) authorise the Commission to implement certain internationally agreed standards on a continuing basis (Arts 3(4) & 4(5)).

The Advocate General considered that, if these provisions are interpreted appropriately, Art 114 TFEU provides an adequate legal basis for the Union legislature’s activity. Relevant current and future obstacles to trade exist and the contested provisions will improve the functioning of the internal market. Undoubtedly, where tobacco products are prohibited, the Directive is not capable of improving the functioning of the internal market for those products. However, it is recognised in the Court’s jurisprudence that Article 114 TFEU grants the Union legislature the power to prohibit the placing on the market of a certain product if this helps to improve trading conditions for a class of other products [54]-[144].

Proportionality

In the national judicial review proceedings, the tobacco companies challenged the proportionality of two aspects of the Directive - the prohibition on the marketing of tobacco products with characterising flavours and the regulation of the labelling and packaging of such products. In accordance with established jurisprudence, the Advocate General noted that the principle of proportionality:

“..requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary in order to achieve those objectives;… when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued…” [146]

In assessing proportionality, the Court is obliged to take fundamental rights into account wherever relevant.

In the national court, the tobacco companies claimed that many of the contested provisions of the Directive interfere disproportionately with their freedom to conduct a business (Art 16, EU Charter). In examining these claims, the Advocate General noted that the Union legislature has a broad discretion to interfere with the right to conduct a business where it acts in an area, such as that of tobacco control, which involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations. This was particularly so where the Union legislature acted to achieve a high level of health protection in the European internal market. In such circumstances, legislative activity will only be invalid if it is manifestly inappropriate for attaining the legitimate objectives pursued, goes manifestly beyond what is necessary to achieve those objectives or entails disadvantages which are manifestly disproportionate to its objectives. [149]-[150]

In this light, and in view of the precautionary principle [155]-[160], the Advocate General did not consider that the contested measures constitute a disproportionate interference with the tobacco companies’ freedom to conduct a business. A number of less intrusive means of satisfying the legislature’s health goals had been suggested by the tobacco companies. These included the imposition of age limits on the sale of cigarettes with characterising flavours and the launching of information campaigns about the dangers of tobacco products. However, in the Advocate General’s view, these would clearly be less effective than the measures adopted under the Directive. In considering proportionality in the strict sense, she acknowledged that the contested provisions would have an adverse economic impact on some undertakings. However, she noted that transitional periods were available under the Directive and, in any event:

“It should be borne in mind…that the protection of human health has considerably greater importance in the value system under EU law than such essentially economic interests (see Articles 9 TFEU, 114(3) TFEU and 168(1) TFEU and the second sentence of Article 35 of the Charter of Fundamental Rights), with the result that health protection may justify even substantial negative economic consequences for certain economic operators.” [179][204]

This being so, the contested provisions did not interfere disproportionately with the companies’ freedom to conduct a business. 

The national court also referred a question concerning the proportionality of Art 13 of the Directive with the tobacco companies’ right of freedom of expression under Art 11 of the Charter. Art 13 prohibits elements of labelling on the packaging of tobacco products that give rise to a number of specified effects, including those that (i) promote a tobacco product or encourage its consumption by creating an erroneous impression about its characteristics, health effects, risks or emissions; (ii) those that suggest that a particular tobacco product is less harmful than others or aims to reduce the effect of some harmful components of smoke or has vitalising, energetic, healing, rejuvenating, natural, organic properties or has other health or lifestyle benefits and (iii) those that suggest economic advantage. The Advocate General interpreted this provision as prohibiting both true and false statements on product packaging where those statements, viewed objectively, are capable of producing one or more of the designated effects:

“An ‘organic cigarette’ is still a product that is extremely harmful to health. Information on the product packaging should not suggest even to consumers who are aware of the health risks of smoking — even merely subconsciously — that it is desirable for them or beneficial to the environment to smoke ‘organic cigarettes’. In addition, any poor conscience on the part of smokers on account of the health risks associated with the consumption of tobacco products should not be appeased by the fact they are doing something good for themselves or for the planet by turning to ‘organic cigarettes’ rather than conventional cigarettes.” [222]

Nevertheless, even when interpreted expansively in this way, Art 13 does not constitute a disproportionate interference with the tobacco companies’ right of freedom of expression. The Union legislature has less freedom of manoeuvre in restricting freedom of expression than it has in interfering with the right to conduct a business. The European Court of Human Rights has for some time subjected restrictions to commercial communications to a detailed proportionality enquiry and the Court of Justice should do likewise. However, according to the Advocate General, the constraints imposed by Article 13(1) were not disproportionate to the health protection objectives pursued, particularly as the products at issue entail considerable health risks [211]- [237].

Improper delegation of powers to the Commission

Under Art 290(1) TFEU, the Union legislature may delegate the power to adopt non-legislative acts of general application to supplement or amend a basic legislative act to the Commission and, under Art 291TFEU, the legislature may delegate the power to adopt measures that implement legislation to the Commission. The referring court asked whether, in passing provisions of the Directive, the Union legislature had exceeded the limits of these powers of delegation; in particular, because a number of the powers delegated were either legislative in nature or were unreasonably vague. The Advocate General considered any such criticisms to be ill-founded [238]-[269].

The principle of subsidiarity

Under the principle of subsidiarity, as enshrined in Art 5(1) TEU in conjunction with Article 5(3) TEU, in areas which do not fall within its exclusive competence, the Union may act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level [271]. As noted above, in large part, the questions referred by the national court on the application of the subsidiarity principle were considered to be inadmissible by the Advocate General because they had not been presented in sufficient detail. The only admissible question on subsidiarity was given short shrift by the Advocate General, who was strongly of the view that action to control tobacco products with characterising flavours could not be achieved at national level and that the Directive’s objectives in this regard could be better achieved at Union level.

In addition to this challenge on substance, the national court had asked whether the Union legislature had provided an adequate statement of reasons for the Directive in the light of the principle of subsidiarity, suggesting that the legislature had simply asserted compliance with the principle of subsidiarity in a formulaic manner. That being the case, a question arose as to whether the Directive was vitiated by a defective statement of reasons. In considering this question, the Advocate General noted that:

“Where compliance with the principle of subsidiarity is under examination, it must be clear from the statement of reasons for the EU measure whether the Union legislature gave sufficient consideration to questions relevant to the principle of subsidiarity and, if so, what conclusions it reached with regard to subsidiarity.” 

She agreed that Recital 60 of the Directive was an “empty formula”. However, this did not necessarily mean that the measure was invalid because aspects relevant to the issue of subsidiarity were also to be found in other recitals, even if those recitals do not themselves make express reference to the principle of subsidiarity . Furthermore, it was not necessary for the justification for a Union measure in the face of the principle of proportionality to be completely evident in the contested legislative measure itself. Here, for example, justification for the Union’s legislative action could be found in the Explanatory Memorandum for the Commission’s Proposal for a Directive and in the comprehensive preparatory work by the Commission staff in connection with the impact assessment for the Directive. As a result, the legislative institutions had adequate material on which to base their evaluation of compliance with the principle of subsidiarity [270]-[301]. Nevertheless, according to the Advocate General:

“...it is strongly advisable that in future the Union legislature avoids set formulas like the one contained in recital 60 in the preamble to the Directive and instead enhances the preamble to the EU measure in question with sufficiently substantial statements regarding the principle of subsidiarity which are tailored to the measures in question. [301]

Implications for standard packaging legislation in the Member States

If the Court follows Advocate General Kokott’s guidance, the most controversial provisions of the Tobacco Products Directive will comprehensively withstand the tobacco industry’s “general onslaught”. However, the industry’s legal challenge to tobacco control legislation in Europe will certainly not end there. As explained above, Art 24(2) of the Directive provides that:

“This Directive shall not affect the right of a Member State to maintain or introduce further requirements, applicable to all products placed on its market, in relation to the standardisation of the packaging of tobacco products, where it is justified on grounds of public health, taking into account the high level of protection of human health achieved through this Directive. Such measures shall be proportionate and may not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States...”

The United Kingdom and Ireland have already taken advantage of this freedom to enact comprehensive standardised packaging legislation (see the Standardised Packaging of Tobacco Products Regulations2015 and the Public Health (Standardised Packaging of Tobacco) Act 2015 respectively). France has committed to follow suit.

Under such laws, tobacco products must be sold in drab-coloured packaging without any branding other than a written indication of the brand and variant under which the product is sold. While the UK and Irish provisions are not set to come into force until May, they have already been challenged by the tobacco industry in judicial review proceedings. In the United Kingdom, the High Court heard the industry’s challenge in December and judgment is expected soon. The industry argues, amongst other things, that the domestic legislation interferes with the principle of freedom of movement of goods, breaches European trade mark law and violates a number of their fundamental rights.

(C-547/14) Philip Morris Brands SARL does not concern Member State standardised packaging legislation and, indeed, as we have seen, the national court’s questions on the validity of Art 24(2) have been considered inadmissibly hypothetical. Nevertheless, if endorsed by the Court, the views of the Advocate General may have important implications for the outcome of the domestic challenges to the legality of the UK and Irish legislation.

National court not simply to refer tobacco companies’ challenges without attempting to reach its own view

The tobacco industry has deep pockets and resists tobacco control measures by all means possible. In the domestic proceedings in (C-547/14) Philip Morris Brands SARL, the industry clearly threw the kitchen sink at the Directive. In such circumstances, it is perhaps not surprising that the domestic judge largely satisfied himself with establishing that the claims were arguable before passing them swiftly on to the Court of Justice. Nevertheless, the Advocate General’s strongly-worded criticism must make it more likely that the High Court judge currently considering the challenge to the UK’s standardised packaging regulations will attempt resolve the industry’s multiple claims himself rather than simply referring them to the Court.

Free movement of goods

In (C-547/14) Philip Morris Brands SARL, the tobacco companies suggested that Art 24(2) could not properly be based on Article 114 TFEU because it allows Member States to undermine the free movement of goods by introducing more stringent rules than those laid down at Union level. As has been indicated above, the national court’s question on this issue was considered inadmissible. Nevertheless, in the alternative, the Advocate General suggested that Art 114 TFEU provided an appropriate legal basis for Art 24(2). Properly interpreted, this provision permitted Member States to adopt “further requirements” only in so far as the Union legislature itself has not carried out harmonisation. As such, Art 24(2) simply made it clear that the Directive was only partially harmonising. [105]-[120]. On this basis, the Advocate General indicated that it ought to be possible for Member States to introduce fully standardised packaging legislation at national level:

“…[T]he Member States remain free, in particular, to lay down their own requirements as to colours of all parts of the packaging which are not reserved for warnings, extending as far as the standardisation of packaging….Colouring is regulated — indirectly — in the Directive at most in so far as Article 13 prohibits tobacco products being given a misleading or deceptively positive presentation.” [113]

Such national legislation would, of course, introduce new obstacles to trade and the question of proportionality would be crucial in determining whether the interference with the principle of free movement of goods which they create can be justified. Again, on this issue, the Advocate General’s Opinion offers interesting insight.

Proportionality and fundamental rights

Formally at least, the proportionality of national legislation must, be examined against a stricter standard than that applied generally by the Advocate General in (C-547/14) Philip Morris Brands SARL (“manifest disproportionality”). There are also differences in the factual and policy contexts of the two disputes. Nevertheless, there are many indications in the Opinion that suggest that, in principle, national standardised packaging legislation will survive review for compatibility with the proportionality principle in Union law.

Logically, a Member State legislature ought also to benefit from discretion to legislate in an area, such as tobacco control, which involves political, economic and social choices and in which complex assessments and evaluations must be undertaken and the “precautionary principle” ought to apply where national legislation aims to achieve important public health objectives against a background of scientific evidence that is, to some degree, uncertain. More particularly, however, the Advocate General’s Opinion indicates considerable scepticism about some of the arguments upon which the industry has relied heavily in the judicial review of the standardised packaging regulations in the United Kingdom.

She was clearly not persuaded by claims that an alleged increase in the trade in counterfeit tobacco products resulting from standardised packaging legislation renders such legislation disproportionate. [84]-[85]; [182]. Perhaps even more importantly, she rejected, with some disdain, the argument that standardised packaging legislation will be ineffective in dissuading people (and particularly young people) from smoking; noting that plainer packaging will remove some of the “coolness or fun factor that may be associated with unusual or particularly striking packaging and the curiosity that may be inherent in new or unusual packaging…” [191].

Conclusion – the role of fundamental rights

In lobbying on, and litigating against, standardised packaging legislation, the tobacco industry has placed considerable reliance on its fundamental rights. However, the Opinion in (C-547/14) Philip Morris Brands SARL suggests that the presentation of its arguments within the framework of the Charter is unlikely to have a conclusive impact on the outcome of its challenge to standardised packaging legislation. The right to conduct a business is clearly very readily outweighed in the public interest and, even if the restriction of the industry’s right to apply its trade marks is framed as an interference with property under Art 17 of the Charter, little significant difference would appear to be made to the assessment of proportionality in this instance (see (C-477/14) Pillbox 38 (UK) Ltd [194]-[201]). Even arguments based upon the more potent right of freedom of expression are unlikely to prevail. Ultimately (and perhaps unsurprisingly), all such claims face the same obstacle. In the Advocate General’s words:      

“Certainly, the standardisation of the shape, size and minimum content of cigarette packets brought about by the Directive means a loss of diversity, marketing opportunities and competitive potential for manufacturers of tobacco products. However, the purely economic interest in the greatest possible inter-product and inter-brand competition must be secondary to the protection of human health, which, as has already been stated, has considerably greater importance in the value system under EU law…” [193]-[204].

This, however, is not the only interesting point to be made about the Union’s fundamental rights framework. More generally, there are also a couple of features of the Opinion which indicate that the Court’s jurisprudence on the application of the Charter may not yet be fully established. First, while the Advocate General referred to the right to health care protected under Art 35 of the Charter as designating a public interest of very high importance, she did not examine the legitimacy of the various contested provisions by reference to the need to establish a “fair balance” between competing rights of equivalent status. Instead, she sought strictly to determine the proportionality of the Union legislature’s interference with the tobacco companies’ protected rights. This approach might have been employed as a result of the manner in which the national court had referred its questions. However, in other cases, the Court has employed a “fair balance” framework and this diversity of approach indicates a significant ambiguity at the heart of its fundamental rights jurisprudence.

Another interesting feature of the Opinion relates to the concept of the “essence” of protected fundamental rights. Under Art 52(1):

Any limitation on the exercise of the rights and freedoms recognised by this Charter must…respect the essence of those rights and freedoms.

  

In this context, “essence” appears to indicate an irreducible minimum of protection. However, the exact function of this concept has yet to be explained clearly by the Court. This uncertainty seems apparent in the Opinion. Following a thorough assessment of the proportionality of the Directive’s interference with the right of freedom of expression, the Advocate General provides only the following briefest of afterthoughts:

“The essence of freedom of expression (first sentence of Article 52(1) of the Charter of Fundamental Rights) is likewise not affected if commercial communications by undertakings which are intended solely to promote sales are restricted by an EU legislative act” [236].

The lack of further explanation here perhaps again indicates another aspect of the Court’s fundamental rights jurisprudence awaiting further elaboration.

Barnard & Peers: chapter 5, chapter 11, chapter 12

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