Philip Morris Brands Sarl , R (on the Application of) v The Secretary of State for Health & Ors

Only the Court of Justice of the European Union may declare an EU measure invalid. Where a judicial review claim challenging such a measure is arguable, the national court should make a preliminary reference under Article 267 TFEU in appropriate terms.

Permission to intervene under CPR 54.17 does not automatically make the intervener a party for the purposes of a CJEU reference. The question is context-sensitive. The court must determine party status flexibly by considering the applicant’s connection with the proceedings and the United Kingdom, the risk that its interests will not otherwise be fairly represented, its expertise, and the strength of its interest in the outcome.

British American Tobacco UK Limited and Philip Morris Brands Sarl and Philip Morris Limited brought joined judicial review claims concerning the Secretary of State’s intention and obligation to implement Directive 2014/40/EU, the Second Tobacco Products Directive. Although formally directed at the Secretary of State’s proposed implementation, the claims challenged the validity of the Directive itself.

The parties agreed that questions concerning validity and interpretation should be referred to the CJEU. Several organisations also sought recognition as parties so that they could participate in the reference. The court therefore considered both whether to make the reference and how those organisations should be categorised for that purpose.

1. Reference made. The claims were arguable. Since only the CJEU has jurisdiction to declare EU measures invalid, the court made a preliminary reference under Article 267 TFEU, subject to one amendment to the agreed draft. The questions concerned legal basis, proportionality, fundamental rights, delegated and implementing powers, subsidiarity, and interpretation of the Directive. Further national proceedings were to be stayed pending the CJEU’s ruling.
2. Procedural requirements. The draft complied with CPR Part 68, the Practice Direction, Article 94 of the CJEU Rules of Procedure, and the CJEU’s recommendations concerning requests for preliminary rulings.
3. Party status. A person permitted to be heard under CPR 54.17 is not automatically a party for the purposes of a CJEU reference. Section 151(1) of the Senior Courts Act 1981 could not be applied mechanistically. Its wording and the procedural context required a more flexible interpretation. The modern CPR provision differs materially from the former Order 53 rule 9, and filing evidence or obtaining permission to be heard does not itself confer an entitlement to participate in the European reference.
4. The court considered the organisations’ substantive applications separately from the earlier KZPT decision. The relevant considerations included their connection with the United Kingdom, any competitive interest with the claimants, the experience and expertise they could contribute, and whether they had a sufficiently strong interest in the outcome to justify party status. Those considerations were satisfied here, including in the case of von Eicken notwithstanding its more limited UK connection.
5. The organisations were accordingly treated as parties for the purposes of the reference. The court requested, where practicable, that the reference be listed with the related Pillbox proceedings and the Polish Government’s direct action under Article 263 TFEU.

This was a first-instance judicial review decision. Supperstone J had granted permission, joined the claims and directed the hearing on 30 July 2014. The judgment also referred to the judge’s earlier decision concerning KZPT, [2014] EWHC 3515 (Admin), but that was a separate procedural decision in the same litigation.