Case summary

Deciding Body
High Court of Justice Court of Appeal (Civil Division)
High Court of Justice Court of Appeal (Civil Division)
* United Kingdom
National case details
Date of decision: 17.06.11
Registration ID: C1/2011/0123 & C1/2010/2978
Instance: Appellate on fact and law
Case status: Final
Area of law
Health law

Relevant principles applied
Effectiveness, Proportionality

Life-cycle diagram

  1. 1 December 2010

    High Court of Justice Queen’s Bench Administrative Court

  2. 17 June 2011

    High Court of Justice Court of Appeal

Identification of the case

Fundamental rights involved
  • Right to property (art. 17 CFREU)
  • Health care (art. 35 CFREU)
National law sources
  • Health Act 2009
  • Protection from Tobacco (Sales from Vending Machines) Regulations 2010 (“the Regulations”)
EU law sources
  • Articles 34, 36 TFEU
  • Articles 17, 35 CFREU
ECHR provisions
Article 1 of the First Protocol (“A1P1”) to the European Convention on Human Rights (“ECHR”)

Summary of the case

Facts of the case

Sinclair Collis Ltd (the claimant) with the National Association of Cigarette Machine Operators (NACMO) support, by means of judicial review proceedings sought to impugn Section 22 and Section 23 of the Health Act 2009 (“the Health Act”) and the Protection from Tobacco (Sales from Vending Machines) Regulations 2010 (“the Regulations”) made under it so as not to ban the sale of tobacco from automatic vending machines. The vending machine operators had argued that a law banning cigarette vending machines contravened provisions of the TFEU regarding restrictions on imports. In the alternative, they argued for a less restrictive measure of fitting machines with age restriction mechanisms because there was no evidence of a causal link between a complete ban and decreased smoking. Moreover, the claimants challenged that the above-mentioned laws (the act and the regulation) violated the principles of proportionality as the subject-matter engaged Articles 34 and 36 of the TFEU and Article 1 of the First Protocol (“A1P1”) to the “ECHR”.

Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied

Dismissal of the appeal.

Reasoning (legal principles applied)

The High Court of Justice reasoned that given the margin of appreciation the government has and in light of the expert evidence and public opinion as to the dangers to health of tobacco smoking takes to restrict the availability of tobacco products, especially to young people, is almost self-evidently one “with which no court should interfere”, unless there is a different ulterior motive from the state. The Court considered the ban to be prima facie lawful in so far as it was reasonably intended to reduce smoking for those under the age of 18 and that other less intrusive alternative means of achieving the same end may be or lead to significantly less effective results than the proposed ban on the vending machines. Furthermore, the Court noted that the claimants would have to make a strong case to convince the Court that there was lack of proportionality on the part of the government, to overturn the ban and claim that the rights enshrined in the legislations had indeed been infringed.

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

The case is related to the Charter as the essence of the challenge forwarded by the claimant was that the acts and regulation violated the principle of proportionality which the law required to be respected because the measures’ subject-matter engaged to the TFEU and Article 1 of the First Protocol (“A1P1”) to the ECHR. Moreover, the judgment mentions Article 17 (right to property) and Article 35 CFREU (right to health).

Reference to national provisions

Health Act 2009

Section 22 and 23 – measures to ban tobacco vending machines

Protection from Tobacco (Sales from Vending Machines) Regulations 2010 (“the Regulations”)

Relevance of CFREU and ECHR articles or related rights

The rights enshrined in the CFREU, particularly the second paragraph of Article 35 and Article 17 (right to property) were relevant.

Article 17 was relevant in discussing the suitability of the measures by Member States where it was reasoned in the judgment that the “obstacle to the freedom to pursue an economic activity constituted by a measure of such a kind cannot be regarded, in relation to the aim pursued, as a disproportionate interference with the exercise of that freedom or with the right to property.”

The second paragraph of Article 35, was relevant in the assessment of proportionality of the measures where the Court in its judgment stated that national legislature is entitled to a considerable margin of appreciation.

Relevant principles applied
  • Effectiveness
  • Proportionality
Principle of effectiveness

The effectiveness of the ban and age restricting mechanisms was dealt with and included in the judgment.

Principle of proportionality

The ban on cigarette vending machines would prima facie violate TFEU Article 34 and the first sentence of A1P1 and was considered to be unlawful unless justified pursuant to Article 36 TFEU and (on the footing that the interference with property amounts to control of use rather than deprivation). Hence, such a justification must fulfil the principle of proportionality. The judgment referred to FEDESA and others in which the Court of Justice said that the principle of proportionality is one of the general principles of community law and that the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; 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. Moreover, the judgment stated that where there is the promotion of public health which is of general importance to the public, or a general policy of the European Union, there will be a broader margin of appreciation to the State.

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
Cited CJEU
  • C-170/04
  • C-354/95
Cited ECtHR
  • James and others v the United Kingdom - 8793/79 [1986] ECHR
Dialogue techniques

Conform interpretation with EU law as interpreted by the CJEU and with the ECtHR.

Purposes of using judicial dialogue

The Court referred to the ECtHR (James and others v. the United Kingdom) in discussing instances in the jurisprudence of the ECtHR where the “least intrusive means” test is not applied as part of the test of proportionality. The Court also very greatly referred to CJEU cases mentioned above to identify the proper scope of proportionality, what the principle entails and the scope of the margin of discretion or appreciation accorded to the decision-maker.

Expected effects of judicial dialogue

The judgments of the ECtHR and CJEU enabled the Court to elaborate on the principle of proportionality.

Additional notes on the decision

External links

Case author

Meron Mekonnen, University of Groningen

Published by Chiara Patera on 19 March 2021