Sinclair Collis Limited

Petition for Judicial Review - Lord Doherty

The Petitioners own and operate tobacco vending machines. They are the largest such operator in the United Kingdom. They are a wholly owned subsidiary of Imperial Tobacco Limited. In this petition they challenged the legality of an enactment of the Scottish Parliament, namely section 9 of the Tobacco and Primary Health Services (Scotland) Act 2010. The Lord Advocate (the “First Respondent”) opposed the petition on behalf of the Scottish Ministers and for the public interest.

Section 9 contains a prohibition on having tobacco vending machines available for use on premises. It has not yet been brought into force. The petition contained three grounds of attack on section 9. The first two grounds were that it was outside the legislative competence of the Scottish Parliament to enact it because it was incompatible with Community law (Article 34 of the Treaty for the Functioning of the European Union (TFEU)); and that it was incompatible with the Petitioners’ Convention rights (Article 1 of the First Protocol (A1P1)of ECHR). The third ground was that section 9 was inapplicable and unenforceable because the United Kingdom had not notified it to the Commission of the European Communities in accordance with Article 8(1) of the Technical Standards Directive (Directive 98/34/EC). Shortly before the hearing commenced the Scottish Ministers decided to notify the terms of section 9 to the Commission on a protective basis, and as a result argument at the hearing related only to the first two grounds.

Article 34 TFEU regulates the free movement of goods between member states. It prohibits quantitative restrictions on imports between member states and all measures having equivalent effect. Article 36 provides that such restrictions may be justified in certain circumstances. The Petitioners argued that they imported from other member states tobacco vending machines for use in their business; and that an actual effect of section 9 would be to restrict such imports. They would cease. There was accordingly a breach of Article 34 which was not justified under Article 36. A less restrictive measure had been available which would have been equally effective in preventing under-age smokers from obtaining cigarettes from machines – namely using machines with radio frequency controlled mechanisms. The First Respondent argued that section 9 did not fall within Article 34 because it was a selling arrangement: and that even if it did, the enactment of section 9 was justified under Article 36.

A1P1 provides that every person is entitled to the peaceful enjoyment of their possessions. The Petitioners argued that section 9 infringed their right to peaceful enjoyment of their assets and that the interference was not justified or proportionate. The first Respondent argued that any interference was justified and proportionate.

The Lord Ordinary (Lord Doherty) held that the Parliament had been entitled to enact section 9 and that neither the Community law challenge nor the Convention rights challenge were well founded. Section 9 was justified in the public interest for the protection of health and life. It was appropriate and proportionate. It had been open to the Parliament to reject the suggested alternative as less satisfactory and effective. It was unnecessary to decide whether section 9 fell within the scope of Article 34 because it was justified under Article 36. Had such justification been absent it would have been necessary to seek a preliminary ruling from the Court of Justice of the EU on the Article 34 issue. 

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