R v Secretary of State for Health, Ex p Imperial Tobacco Ltd (Imperial Tobacco Ltd, Ex p)

Where events occurring after an appeal make its determination unnecessary, the court cannot seek a preliminary ruling under article 234 of the EC Treaty merely to settle an important question for the future. The House therefore left open whether Community law or domestic law governs interim relief restraining a member state from implementing a directive before the implementation deadline.

A majority considered that Community law might require uniform conditions and that the answer was not acte clair. Had a decision been necessary, a reference to the European Court of Justice would have been obligatory. The contrary view, that domestic principles alone governed the application, did not command a majority.

Four tobacco companies sought judicial review of a decision to implement Directive 98/43/EC by regulations under section 2 of the European Communities Act 1972. Turner J referred the validity of the Directive to the European Court of Justice and restrained the Secretary of State from making the regulations pending that ruling.

The Court of Appeal, by a majority, set aside the injunction: [2000] 2 WLR 834. It held that the stricter Community-law conditions for interim relief governed the application. Laws LJ dissented and considered that domestic law applied.

While the appeal was pending, the European Court annulled the Directive. The proposed regulations therefore lacked the necessary Community obligation, and substantive relief was no longer required. The remaining question was whether the House should nevertheless decide which system of law governed interim relief during a directive's implementation period.

1. No substantive order was made on the appeal. The House unanimously ordered the Secretary of State to pay the appellants’ costs in the Court of Appeal and the House, limited to two counsel. The European Court's annulment of Directive 98/43/EC had removed the power to implement it under section 2(2) of the European Communities Act 1972. The dispute over interim relief had therefore become academic.

2. Lord Slynn, Lord Nicholls and Lord Clyde held that the governing-law question should remain open. In Lord Slynn’s view, the Community requirement of uniformity arguably extended to judicial orders restraining early implementation of a directive. The conditions identified in Zuckerfabrik were therefore at least a relevant starting point. Lord Nicholls agreed that Community law's application could not be regarded as acte clair, because an injunction might interfere with the operation of a valid directive even though implementation was not yet due. Lord Clyde likewise considered the issue too uncertain to resolve without guidance from the European Court.

3. Accordingly, had determination of the appeal required an answer, the majority would have made an obligatory reference under article 234 of the EC Treaty. Since the answer was unnecessary to judgment, the reference procedure was unavailable. The House therefore did not decide whether Community law applied or whether its conditions differed from the domestic principles governing interlocutory relief.

4. Lord Hoffmann, with whom Lord Millett agreed on this issue, would have held that domestic law alone governed the application. Before the implementation deadline, Community law required no uniform implementation, but only that member states refrain from seriously compromising the prescribed result. Differences between national criteria for interim relief could not therefore jeopardise uniform application. On that view, Turner J had applied the correct domestic principles and his order would have been restored had relief remained necessary.

5. Lord Millett added that the national court must avoid obstructing full implementation by the deadline. He also emphasised that courts are constitutionally responsible for examining the validity of legislation invoked to support state coercion. These observations did not form part of the majority's basis of decision.

1. House of Lords: Made no substantive order because annulment of the Directive had rendered the dispute academic. It ordered the Secretary of State to pay the appellants’ costs in the Court of Appeal and the House, limited to two counsel.

2. Court of Appeal: By a majority, allowed the Secretary of State’s appeal and discharged the injunction: [2000] 2 WLR 834. It held that Community-law conditions governed interim relief. Laws LJ dissented.

3. High Court: Turner J referred the validity of the Directive to the European Court of Justice and restrained the Secretary of State from making implementing regulations pending the ruling.