The Infant and Dietetics Foods Association Ltd., R (on the application of) v The Welsh Ministers

Where a directive requires Member States both to transpose its provisions into domestic law and to achieve specified effects by later dates, those obligations must be distinguished. “Adopt and publish” requires the provisions to be passed into published domestic law. It does not require immediate enforcement of every substantive prohibition. The expression “trade in products” may include the products’ packaging and labelling where the directive’s context and legislative history support that construction. A prohibition on trading products that do not comply with labelling requirements takes effect on the date expressly specified for that prohibition. Member States have no discretion to bring that prohibition into force earlier where the directive says it must operate “with effect from” a particular date.

The claimant, a trade association representing manufacturers of infant and follow-on formula, sought judicial review of the Infant Formula and Follow-on Formula England Regulations 2007. The challenge concerned whether the Regulations lawfully implemented the labelling requirements of Commission Directive 2006/141/EC.

The Directive required Member States to adopt and publish implementing provisions by 31 December 2007, while requiring a prohibition on trade in non-compliant products with effect from 31 December 2009. The central issue was whether “products” in Article 18 included packaging and labelling, and whether the United Kingdom could enforce the labelling prohibitions before the later date.

1. Construction of Article 18. The obligation to “adopt and publish” laws, regulations and administrative provisions meant no more than passing the directive’s requirements into published domestic law. It did not require all those requirements to be immediately enforceable.
2. Meaning of “products”. Although “products” was equated with formulae in several provisions, Article 13.8(a) showed that the term could include matters such as shape, appearance, packaging and display. Article 14.3 likewise indicated that products could include packaging. The word therefore had to be construed contextually.
3. Implementation timetable. The structure of the earlier directives and the travaux préparatoires supported the conclusion that Article 18 concerned the formulae, their packaging and their labelling. The first implementation stage required transposition into domestic law by 31 December 2007. The prohibition on trade in products non-compliant with the Directive, including as to labelling, took effect only from 31 December 2009. The second indent allowed no margin for an earlier date.
4. Result. The English Regulations and corresponding Welsh Regulations had not accurately transposed the second indent of Article 18 because they imposed the labelling prohibition prematurely. The provisions required recasting. A declaration was made to that effect, the interim stay was discharged, the claimant received its costs subject to detailed assessment, and permission to appeal was granted.

The judgment was a first-instance judicial review decision. The proceedings had been commenced by claim form on 9 January 2008, following an interim stay made by Forbes J on 11 January 2008. The stay was discharged after the declaration in this judgment.