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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Philip Morris Brands Sarl , R (on the Application of) v The Secretary of State for Health & Ors  EWHC 3669 (Admin) (07 November 2014)
Cite as:  EWHC 3669 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the Application of
PHILIP MORRIS BRANDS SARL
PHILIP MORRIS LIMITED
BRITISH AMERICAN TOBACCO UK LIMITED
|- and -
|THE SECRETARY OF STATE FOR HEALTH
IMPERIAL TOBACCO LIMITED
BRITISH AMERICAN TOBACCO UK LIMITED
JT INTERNATIONAL SA
TANN UK LIMITED AND TANNPAPIER GMBH
V. MANE FILS
DEUTSCHE BENKERT GMBH & CO KG AND BENKERT UK LIMITED
1. JOH. WILH. VON EICKEN GMBH
Interested Parties in
Interveners in Claim CO/2969/2014
Intervener in Claim CO/2971/2014
Crown Copyright ©
The Hon Mr Justice Turner:
i) for the reasons set out in Schedule B to the order, the questions set out in Schedule A to the order would be referred to the CJEU forthwith; and
ii) in accordance with standard practice, all further proceedings would be stayed until the CJEU has given its preliminary ruling on those questions, with costs reserved.
i) questions relating to whether the EU Legislature has identified an adequate legal basis within the TFEU for the adoption of TPD2;
ii) questions relating to whether TPD2 complies with the principle of proportionality (a general principle of EU law) and the EU Charter of Fundamental Rights;
iii) questions relating to whether TPD2 or any of its provisions is invalid by reason of the infringement of rules set out in the TFEU governing the delegation of powers and the conferral of implementing powers on the Commission; and
iv) a question as to whether TPD2 is invalid for failure to comply with the principle of subsidiarity.
"Parties to the main proceedings
1. The parties to the main proceedings are those who are determined as such by the referring court or tribunal in accordance with national rules of procedure.
2. Where the referring court or tribunal informs the Court that a new party has been admitted to the main proceedings, when the proceedings before the Court are already pending, that party must accept the case as he finds it at the time when the Court was so informed. That party shall receive a copy of every procedural document already served on the interested persons referred to in Article 23 of the Statute.
3. As regards the representation and attendance of the parties to the main proceedings, the Court shall take account of the rules of procedure in force before the court or tribunal which made the reference. In the event of any doubt as to whether a person may under national law represent a party to the main proceedings, the Court may obtain information from the referring court or tribunal on the rules of procedure applicable."
"Interpretation of this Act, and rules of construction for other Acts and documents.
(1) In this Act, unless the context otherwise requires—
"party", in relation to any proceedings, includes any person who pursuant to or by virtue of rules of court or any other statutory provision has been served with notice of, or has intervened in, those proceedings;…"
"The parties to a judicial review claim will be the claimant, the defendant and interested parties…The courts also have power to allow any other person to file evidence or appear at a judicial review hearing."
To the extent that this approach might be interpreted as suggesting that a person heard under CPR 54.17 can never be characterised as a party I do not endorse it. I do, however, agree with the suggestion that such a person is not automatically a party for the purpose of a preliminary reference.
i) There was little or no evidence to connect KZPT to the UK. Each of the organisations in this case was able to demonstrate, to a greater or lesser extent, a firmer relationship with the UK;
ii) In the case of Von Eicken, whose connection to the UK was more limited than the others there was, in contrast to KZPT, an element of competition with the claimants which introduced doubts that their own specific concerns would be given fair priority in Europe if they were unable to participate;
iii) The organisations were able to bring a higher level of experience and expertise to bear on the issues to be determined than had been demonstrated on behalf of KZPT.