The hearing of TW’s “preliminary reference” challenge to the legality of Article 20 of the TPD took place in the Grand Chamber of the CJEU on 1st October.

TW’s hearing was one of three reference hearings challenging parts of the TPD to be heard by the CJEU on 30th September and 1st October, by the same panel of judges. The decisions in each are expected to be delivered at the same time.

There were 5 judges hearing the case, along with an Advocate General who delivers a legal opinion to assist the judges in making their decision. Against us were 3 member states (the UK, France and Spain), plus the EU institutions of the Parliament, the Council and the Commission.

TW’s barrister was first to speak.

He had an allotted time of just 20 minutes – we agreed in advance with the Court that we could speak for longer than the usual 15 minutes given the number of parties opposing us. All parties prior to the hearing had submitted detailed written observations and supporting evidence. The oral hearing, formally requested by TW, was therefore an opportunity to address specific questions raised in advance by the judges. In doing this, it gave us an opportunity to get our fundamental points across. Our barrister used all of his allotted time, and the Presiding Judge indicated when his 20 minutes was up, but he concluded his submissions properly and put across all the points we wanted him to make clearly and forcefully. He also and had further time at the end to briefly reply and answer questions from the Advocate General.

As the written observations had already been delivered, the hearing was intended to focus on specific issues. The areas of focus were the admissibility of the reference itself, the scope of the questions referred by the UK court, whether EU equal treatment principles required an objective comparison of the physical characteristics of e-cigarettes and tobacco products, and specific questions about the 6 months’ notice period for new products and requirements relating to information leaflets. Our barrister addressed these issues in a way which enabled him to emphasise the substantive and disproportionate impact that specific measures would have.

The EU institutions, as usual in these cases, had collaborated and were therefore able to share their time by addressing different issues raised by the Court in advance. Their arguments were similar to those advanced by the UK, France and Spain. What this meant was that after hearing TW’s barrister at the start of the hearing, the judges then had several versions of the same answer placed before them by our opponents one after another. This was disheartening to say the least.

The Arguments Are Put Forward.

It felt a little confusing at times listening to the arguments put forward by our opponents in comparing e-cigarettes with tobacco in one area, but not in another. Indeed, in dealing with the court’s questions on equal treatment some of our opponents made submissions which acknowledged that clear differences do exist between tobacco products and e-cigarettes. Recurring themes included the e-cigarette industry still being a relatively young industry, the ‘novelty ‘ of e-cigarettes, alleged unfamiliarity of use and supposed health risks known or unknown. Article 20 was described as a ‘light burden’, and the 6 months wait to market was justified as a necessary “vigilance” measure to gain further information about e-cigarettes. Leaflets were said to be justified because the information was very important, and should it be included on a small box there would be issues of legibility for example. The discredited “gateway” theory was widely referred to, as was the supposed impact on young people. The “precautionary principle” was very much centre stage, with the Commission arguing that the EU was determined “not to repeat past mistakes” which had allowed tobacco to become so entrenched over the decades.

All of this highlights just how far behind regulators and EU institutions are when it comes to fast paced innovative ideas, asserting the complete opposite of what is happening on the ground, and they simply cannot keep up.

The Commission’s advocate in his concluding “reply” remarks even trotted out ‘dying babies’ as a justification for regulation. Thankfully TW’s barrister was able to stand up right at the end and rebut the Commission’s remarks about supposed e-liquid poisonings.

The nature of the questions the judges asked the barristers to focus on did, as an observer, feel as if they were tinkering around the edges, but this is how the CJEU works. The judges read the materials submitted, ask questions to clarify specific areas of interest or concern, and then they go away and decide. The Advocate General acts as a judicial advisor. In the closing remarks, she asked TW’s barrister whether it was true e-cigarettes would be legislated against more harshly than tobacco cigarettes given some of the obligations to be imposed on tobacco by TPD, and this was addressed by TW’s barrister when he again pointed out that (for example) tobacco cigarettes will not be subject to emissions testing, nor will they face restrictions on internet or cross border sales.

Yes, this account does feel a tad frustrating. However, the CJEU is not your usual court and does not run along the adversarial lines of the English courts where barristers are able to subject their opponent’s case to a forensic level of scrutiny by specific reference to evidence filed at court. The judges, and particularly the Advocate General in preparing the opinion, do look at all the materials and supporting evidence provided, and can give detailed rulings on parts of the case not addressed in oral submissions – unlike the situation in English proceedings where what is put before the court at a trial largely determines the outcome.

We will get an opinion from the Advocate General on the 17th December. In around 80% of cases, the judges do follow this, and the actual ruling will be given in the early part of next year.