R v. Secretary of State for Health and Ors., ex parte Imperial Tobacco Ltd and Ors.

In July 1998, the European Parliament and the Council created and enacted a Council Directive (“directive”) to ban all forms of advertising or sponsorship that directly or indirectly promoted a tobacco product in the Community. In December 1998, the UK government announced its intention to implement the directive by banning tobacco advertising, as permitted by s. 2(2) of the European Communities Act 1972. Four tobacco companies were granted an injunction, under English Law, against the UK Secretary of State’s decision to implement the directive.

On appeal, the Court of Appeal set aside the injunction. It determined that the grant of interim relief from the injunction had to be decided in accordance with Community law, rather than national law. Community law was more stringent than national law, requiring the applicant to show that serious and irreparable damage would result if the injunction were not immediately upheld; financial damage could not be considered irreparable. The Court of Appeal also noted that granting an injunction would strip the government of its political judgment in its decision to promote public health. The tobacco companies appealed to the House of Lords.

In the interim, the European Court of Justice (“ECJ”) annulled the European Parliament’s directive as ultra vires and removed the power previously conferred on member states to make regulations under 2(2) of the European Communities Act 1972.

Before the House of Lords, the tobacco companies argued that the directive was invalid because it did not have to do with the internal market, but rather was purely a measure to protect public health, which was outside the European Parliament and the Council’s powers. Despite the ECJ’s annulment of the directive, the tobacco companies argued that the House of Lords was in a position to give a judgment on the Court of Appeal’s decision concerning whether the grant of interlocutory relief should have been decided according to English or Community law. The key issue in this case was whether the injunction in the UK should have been issued according to English Law or European Community Law.

The House of Lords observed that the grant of an injunction involved European Community Law, or at the very least, European Community Law was clearly a relevant factor. This was because the European Community legal order required that its law be uniformly applied across member states.The fact that different member states could use different criteria to determine whether to restrain giving effect to a Community directive would undermine the uniformity of Community Law. This was true even where the directive was implemented in national law prior to directive’s implementation date, in order to ensure such uniformity.

Lord Hoffman dissented. He concluded that if a directive’s validity was challenged before its implementation date, Community law was inapplicable on an application for interim relief to a national court; national law must determine the enforcement of regulations. Lord Hoffman observed that determining whether national or Community law should be applied depends on whether “national criteria would jeopardize the uniform application of Community law.” He held that differences in national criteria would not jeopardize the uniform application of community law prior to the implementation date because Community law does not require the directive to be applied depends on whether “national criteria would jeopardize the uniform application of Community law.” He held that differences in national criteria would not jeopardize the uniform application of community law prior to the implementation date because Community law does not require the directive to be applied uniformly before the implementation date. As such, the House of Lords did not need to consider Community law in granting the injunction.

“It seems to me now … that unless judges throughout the Community follow recognized conditions for the grant of interim relief, the review of national regulations applying Community law is going to vary widely. This is plainly wrong. There should be a Community-wide approach to the application, even via national regulations, of Community law. It is obvious that the over-ready granting of interim injunctive relief could undermine such application.” Page 4.