UPDATE | ARTICLE 20 TPD & Totally Wicked Legal Challenge: Court of Justice of the European Union (CJEU) | What will happen on the 1st October 2015?


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Extract is taken from Totally Wicked’s official update outlining legal/logistical context of the legal challenge against Article 20 of the Tobacco Products Directive (TPD).
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The European Court of Justice (CJEU) was established in 1952, and has the role of interpreting EU law to make sure it is applied in the same way in all EU countries. It also settles legal disputes between national governments and EU institutions. The CJEU can, in certain circumstances, be used by individuals, companies or organizations to take action against an EU institution if they feel it has somehow infringed their rights. This is what Totally Wicked is doing.

There are 15 CJEU Judges, each is appointed for a renewable 6-year term. This is done jointly by national governments. There are also Advocate Generals, whose job is to analyse cases and suggest to the Judges what the courts might do. They generally give more background, and they are the legal advisors to the Judges. The CJEU has about 600 new cases each year put before it. There are four basic rulings that the CJEU can make, and they are the following, (taken from the europa.eu website)

Interpreting the law (preliminary reference rulings), national courts of EU countries are required to ensure EU law is properly applied, but courts in different countries might interpret it differently. If a national court is in doubt about the interpretation or validity of an EU law, it can ask the Court for clarification. The same mechanism can be used to determine whether a national law or practice is compatible with EU law.

Enforcing the law (infringement proceedings), this type of case is taken against a national government for failing to comply with EU law. Can be started by the European Commission or another EU country. If the country is found to be at fault, it must put things right at once, or risk a second case being brought, which may result in a fine.

Annulling EU legal acts (action for annulment), an EU act is believed to violate EU treaties or fundamental rights, the Court can be asked to annul it, by an EU government, the Council of the EU, the European Commission or (in some cases)the European Parliament. Individuals can also ask the Court to annul an EU act that directly concerns them.

Ensuring the EU takes action (actions for failure to act), the Parliament, Council and Commission must make certain decisions under certain circumstances. If they don’t, EU governments, other EU institutions or (under certain conditions) individuals or companies can complain to the Court.

Sanctioning EU institutions (actions for damages), any person or company who has had their interests harmed as a result of the action or inaction of the EU or its staff can take action against them through the Court.

How does one get their case to be heard by the CJEU?

The TW legal challenge had to go through the UK courts, as we needed the national courts to recognise there was doubt about the interpretation or validity of Article 20. Having obtained a preliminary reference ruling, the stages that had to be followed at the CJEU were:

Written stage: Parties lodge written observations at the Court, observations can also be submitted by EU institutions and member states.

Report stage: All of this is summarised by the judge-rapporteur and then discussed at the Court’s general meeting, which decides on how many judges will deal with the case (3, 5 or 15 judges (the whole Court), depending on the importance and complexity of the case).

Most cases are dealt with by 5 judges, and it is very rare for the whole Court to hear the case. Whether a hearing (oral stage) needs to be held and whether an official opinion from the Advocate General is necessary.

The 1st of October brings the TW case to the oral stage.

Oral stage/public hearing. Lawyers from both sides can put their case to the judges and Advocate General, who can question them.

Judgement stage: If the Court has decided an Opinion of the Advocate General is necessary, this is given some weeks after the hearing. The judges then deliberate and give their verdict.

General Court procedure is similar, except that 3 judges hear most cases and there are no Advocates General.

What is the current situation of the TW legal case?

We have submitted written observations, received written observations from the institutions/member states. We have the court date of 1st October at 2:30pm; our case is to be heard by 5 of the judges. This is when Totally Wicked’s Barrister orally submits TW’s case against Article 20. He will only have 20 minutes in which to do this. EU institutions and 2 member states are contesting TW’s case and they will have 15 minutes each.

It is likely that the Advocate General will prepare an opinion for the court later this year, followed by a decision in the early part of 2016.


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