Joint Committee On Human Rights Eighth Report


EIGHTH REPORT


The Joint Committee on Human Rights has agreed to the following Report:—

  TOBACCO ADVERTISING AND PROMOTION BILL

BACKGROUND

1. The Tobacco Advertising and Promotion Bill was introduced to the House of Lords by Lord Clement-Jones as a Private Member's Bill. It therefore does not carry a statement of compatibility under section 19 of the Human Rights Act 1998. However, the Bill is substantially the same as a Government bill introduced in the last Session which did carry a section 19 statement of compatibility, but which fell on dissolution. The current Bill is now awaiting third reading in the House of Lords.

2. Attempts to outlaw tobacco advertising have a long history. In the recent past, the Council of the European Communities in 1998 made a Directive (98/43/EC) requiring Member States to introduce legislation banning tobacco advertising and sponsorship. The UK Government announced that it intended to make regulations to give effect to the Directive, with effect from 10 December 1999. However, the validity of the Directive was successfully challenged before the European Court of Justice.[5] The ECJ held that the Directive was outside the powers of the Council as it had no legal basis under the treaties for making a Directive of that type on that subject. As a result, it was impossible for the UK Government to proceed under Section 2 of the European Communities Act 1972. The present Bill is the replacement measure.

3. When we first considered the Bill, we took the view that it had the potential to interfere with various Convention rights. In view of the Bill's origins, it seemed reasonable to ask the Government for its views as to the justifications for any interference. A letter was therefore sent to the Department of Health seeking answers to a number of questions, and an answer has been received.[6] We are glad to note that the Government accept that this was an appropriate way of proceeding. We now report our provisional views in the light of the correspondence.

THE CONTENT OF THE BILL

4. Advertising. The Bill would make it unlawful to publish or cause to be published, in the course of business, a tobacco advertisement in the United Kingdom.[7] It would also make it an offence to print, devise or distribute in the United Kingdom, in the course of business, a tobacco advertisement which is published in the United Kingdom, whether it is distributed in electronic form or some other form.[8]

5. There are certain exclusions in clause 4. In particular, tobacco trade advertising, advertising outside the United Kingdom, and responses to requests for information about tobacco products, would not give rise to liability.[9] The Secretary of State would also have power to make regulations excluding liability from websites which offer tobacco products for sale.[10]

6. Clause 5 and 6 contain various defences. It is a defence for someone to show that he did not know and had no reason to suspect-

      (a)  that the purpose of the advertisement was to promote a tobacco product;[11]

      (b)  that the advertisement would be published in the United Kingdom;[12] or

      (c)  that the publication was or contained a tobacco advertisement;[13]

or that he could not reasonably have foreseen that the advertisement would have the effect of promoting a tobacco product.[14] It is also a defence for a specialist tobacconist to show that an advertisement was in, or fixed to the outside of, his shop, was not an advertisement for cigarettes or hand-rolling tobacco, and complied with any regulations specified in regulations made by the appropriate Minister.[15]

7. Distribution of free tobacco products. The Bill would make free distribution of any product or coupon to the public in the United Kingdom, with the purpose of promoting a tobacco product, an offence, unless the distribution is to persons engaged in any capacity in the tobacco trade.[16]

8. Sponsorship agreements. The Bill would make it an offence to be a party to a sponsorship agreement if the purpose or effect of the agreement or anything done as a result of it is to promote a tobacco product in the United Kingdom.[17]

9. Brandsharing. The Bill would permit the Secretary of State to make regulations prohibiting or restricting the use of any name, emblem or other feature which is connected with a tobacco product in connection with any other service or product, or the use of a name, emblem or other feature connected with another service or produce in connection with a tobacco product.[18]

10. Enforcement. Responsibility for enforcing the legislation would be placed on specified public authorities. They would have powers of entry, and it would be an offence to obstruct duly authorized officers in the proper exercise of their functions.[19]

11. We will now consider the human rights implications of each aspect of the Bill.

RESTRICTIONS ON ADVERTISING AND THE RIGHT TO FREEDOM OF EXPRESSION

12. Advertising is a form of expression which, as the European Court of Human Rights has held, is protected by the right to freedom of expression under Article 10.1 of the ECHR.[20] The rights with which a tobacco advertising ban interferes are both those of the advertiser to free expression and those of people wanting to receive information (which is a right guaranteed under Article 10.1) which the advertisers would be willing to supply. However, it seems that commercial speech is not as strongly protected as, for example, political speech, so it may be easier to justify interference with commercial speech under Article 10.2 than it would be to justify interference with some other kinds of expression.[21]

13. The criminalizing of tobacco advertising and promotion clearly interfere with freedom of expression under Article 10.1. The legislation will therefore be incompatible with the Convention rights under Article 10 unless the interference can be shown to be justified under Article 10.2. This requires that the interference be (a) prescribed by law, (b) for one of the legitimate purposes defined by Article 10.2 and (c) necessary in a democratic society for that purpose.

14. 'Prescribed by law', as interpreted by the European Court of Human Rights, means that any interference (i) must be lawful as a matter of domestic law, and (ii) must meet standards of accessibility and legal certainty set by international human rights law. The Bill seems to be sufficiently accessible and certain to make it likely to satisfy condition (ii). However, it might not satisfy condition (i) if it were to be incompatible with Community law. It is at least possible that a restriction on advertising a product in the United Kingdom might be held by the European Court of Justice to constitute an interference with the right to free movement of goods under the EC Treaty (hereafter the "Treaty").[22]

15. Even were this to be so, such a restriction could be held to be justifiable in the public interest. When considering whether a total ban on advertising tobacco products would be compatible with Community law, and hence capable of being 'prescribed by law' for the purposes of Article 10 of the ECHR, a number of factors fall to be considered.

  • First, a ban on advertising a product appears to be capable of amounting to a measure equivalent to a quantitative restriction on the free movement of goods under Article 28 (formerly 30) of the Treaty or of services under Article 49 (formerly 59), requiring justification if it is not to be unlawful.

  • Second, where the Community has not harmonized the rules on a topic, a Member State may take reasonable measures for purposes which include protecting public health.[23]

  • Third, where the Community has harmonized the rules on a topic, Member States may take only those actions which are compatible with the harmonization.

  • Fourth, in the absence of harmonization, rules relating to selling arrangements (which often include the rules on advertising and promoting a product), as contrasted with rules relating to the composition, packaging, presentation, etc., of the goods themselves, would appear to fall outside Article 28 of the Treaty if they apply equally without distinguishing between goods on the basis of their origins, and do not affect access to the market, even if they restrict the quantity of goods which are likely to be sold.[24]

  • Fifth, if a restriction falls within Article 28 and/or Article 49, it may be justified under Article 30 and/or Article 46 (formerly Article 56) if it is for the purpose (inter alia) of protecting health, does not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States, and is no more extensive than necessary to achieve the legitimate objective.

  • Sixth, if restrictions apply equally to domestic and foreign products, they may be justified on the basis of 'mandatory requirements'.[25]

16. As the Tobacco Advertising and Promotion Bill seemed to have the potential to give rise to issues relating to those principles, we asked the Government whether it was satisfied that the provisions of the Bill would be justifiable under Community law. In reply, the Government drew attention to two factors. First, Community law requires any measures restricting advertising to be justifiable and proportionate. Secondly, the European Court of Justice has held that national courts must normally assess proportionality. The test is whether adequate protection for health could be provided by measures which would create fewer obstacles to trade.

17. We accept that these are relevant factors, but the issue of compatibility may be more complex than the Government's response suggests. We consider that three questions may need to be answered.

  • First, are the rules relating to marketing of tobacco products subject to, or likely to be subjected to, harmonization at Community level? (In this connection, we note that the Community operates both a programme for promoting health, of which efforts to control tobacco advertising form part, and also provides funds to promote tobacco production by securing a guaranteed return for tobacco producers in Member States.)[26]

  • Second, would the controls proposed in the Tobacco Advertising and Promotion Bill fall within Article 28 and/or Article 49 of the Treaty? To what extent would the restrictions in the Bill cover foreign goods or services, and could they be justified by reference to 'mandatory requirements'?

  • Third, if the measure were held to fall within Article 28 and/or Article 49 of the Treaty, what evidence could be advanced to support the claim that a total ban on tobacco advertising and promotion is necessary for the purpose of achieving the objective of protecting public health, in the light of the policies of the Community and of other Member States and any other relevant factors?

18. In view of the strictness with which the European Court of Justice scrutinizes questions of proportionality under Articles 28 and 30 of the Treaty, it would be important to produce clear evidence to support the contention that nothing less than a total ban on tobacco advertising and sponsorship could be expected to achieve its legitimate objectives. The Government, in its reply to our questions, asserted that—

... the evidence shows that only comprehensive bans on advertising and promotion are fully effective. Partial bans result in more funds being channelled into permitted forms of promotion.

Members of both Houses might wish to ask for further particulars of the evidence and research to which the Government refers, so that it can inform debate on the proposals.

19. We take no view as a Committee on whether the requirements of European Community law can be met by the provisions proposed by the Tobacco Advertising and Promotion Bill. Nor would we wish to do so, other than to draw attention to the fact that any apparent restrictions on Convention rights would not be 'prescribed by law', and so capable of being justified, if they were in breach of Community law. As long as the measures proposed in the Bill can be shown to be either outside the scope of Article 28 and/or 49 of the Treaty, or are justifiable restrictions under Article 28 and/or Article 30 and/or Article 46 of the Treaty, the measures would be unlikely to fail the test of being 'prescribed by law' for the purpose of Article 10 of the ECHR. As these are matters which Members of each House might wish to explore further, we accordingly draw them to the attention of each House.

20. We now consider whether the prohibition in the Bill can be said to be for legitimate purposes under Article 10.2. The Bill aims at the protection of health. In the Explanatory Notes to the Bill, paragraph 5, it is said that—

... an advertising ban could reduce tobacco consumption in the longer term by 2.5%. This will translate into an estimated 3,000 lives per year saved.

That is a legitimate aim under Article 10.2 ... .

21. The question remains whether the ban in its nature and extent is 'necessary in a democratic society' for that purpose. The European Court of Human Rights has explained that 'necessary' in Article 10.2 is not synonymous with 'indispensable', neither has it the flexibility of such expressions as 'admissible', 'ordinary', 'useful', 'reasonable' or 'desirable'.[27] Instead, the Court has adopted a two-stage test. First, has it been shown that there is a pressing social need for the restriction in question? Second, is the nature and extent of the restriction proportionate to the legitimate aim that is sought to be achieved?[28] The European Court of Human Rights allows States a 'margin of appreciation' in applying these tests, but the margin of appreciation is not appropriate to purely domestic proceedings under the Human Rights Act 1998, although a court is likely to recognise that public authorities drafting legislation operate within a discretionary area of judgment, the scope of which is ultimately for the court to assess.[29]

22. It can reasonably be accepted that the purpose of reducing the number of people smoking tobacco, and the number of deaths resulting from smoking, reflects a pressing social need.

23. On the question of proportionality, it would be important under the ECHR (as under Community law: see paragraph 15 above) that there should be clear evidence to support its contention that nothing less than a total ban on tobacco advertising and sponsorship could be expected to achieve its legitimate objectives. The Government has referred to evidence to support this view (see paragraph 17 above). We recommend that the evidence should be made available to each House, so that Members of each House may properly evaluate its significance for an assessment of the proportionality of the proposed ban to the end it is intended to achieve.

24. We draw attention to the following factors as being relevant to an assessment of proportionality.

  • The criminal offences which the Bill proposes are of very wide scope, catching more or less anyone concerned with the planning, production or publication of an advertisement or the making or implementation of a sponsorship agreement.

  • The range of media publication covered is very wide, extending to "any means of publishing" (clause 20) except for television and radio advertisements regulated under the Broadcasting Act 1990 and the Broadcasting Act 1996, or a service provided by the British Broadcasting Authority or S4C (clause 12).

  • The aim pursued is one which can reasonably be regarded as being of very considerable importance.

  • The effect on traders in tobacco is ameliorated by clause 4, which allows some tobacco advertising and passing of information, particularly but not exclusively between persons engaged in the tobacco trade.

  • Special provision is made in clause 6 to allow specialist tobacconists to advertise their wares in or on the outside of their premises.

  • The European Council and the European Parliament were convinced when Directive 98/43/EC was adopted that there was a pressing need for action to stop tobacco advertising, despite the fact that the Directive was subsequently held to be ultra vires.

25. We draw the attention of each House to the need to evaluate this evidence, and to the relevance of the above factors to the question of justification under Article 10.2 of the ECHR.

PROHIBITION OF SPONSORSHIP

26. Clause 10 would make it an offence to be party to a sponsorship agreement if the purpose or effect of anything done as a result of the agreement is to promote a tobacco product in the UK. This provision raises issues under Article 10 ECHR, in relation to which our comments in the preceding section also apply. However, the prohibition on sponsorship also impacts on the proposed sponsor's right to dispose of his, her or its own property, which is one of the normal incidents of the right to the peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1 to the ECHR.

27. In so far as the Bill, when enacted, would make unlawful anything done in pursuance of a sponsorship agreement entered into before the Act came into force, it would amount to an interference with contractual rights, which counts as property for the purpose of Article 1 of Protocol No. 1. Such interference would be contrary to the requirements of the first paragraph of Article 1 of the first Protocol unless 'in the public interests and subject to the conditions provided for by law and by the general principles of international law'. This last phrase imports a duty to compensate for losses incurred as a result of deprivation of property in the public interest.

28. There seems no reason to doubt that a deprivation of property taking the form of an interference with the performance of a sponsorship contract could be said to be in the public interest if it was intended to reduce deaths caused by smoking and had a realistic chance of achieving that objective. However, it would still be necessary, if the rights under the sponsorship contract were taken away, to compensate the parties for loss of income due to them under the contract. The Bill as currently drafted does not specify that it is not to apply to things done in pursuance of sponsorship contracts entered into before the Act comes into force (although the Minister has a wide power to make provisions which might include arrangements of that sort when making regulations under clause 18(2) or a Commencement Order under clause 21). Nor does the Bill indicates what provision, if any, will be made for compensating people whose contractual rights under sponsorship contracts are taken away as a result of the Act.

29. When we raised this with the Government, the reply accepted—

  • that a fair balance must be maintained under that Article between the public interest and people with rights under the contract; and

  • that compensation 'can be an issue if a fair balance is to be achieved'.

The Government noted that the European Court of Human Rights had said that compensation is an aspect of achieving a fair balance.

30. In this connection, however, the Government suggested that the following factors would allow a fair balance to be achieved without the need to pay compensation to those with subsisting tobacco sponsorship contracts.

  • The Government's long-standing and well-known intention to ban tobacco advertising and sponsorship means that parties to sponsorship agreements could not have expected them to run forever, so it would be reasonable to expect them to be able to end the agreements if allowed sufficient time and help to do so.

  • The possibility that the implementation date for certain provisions in the Bill could be deferred until a time not later than 1 October 2006 (or at least until 2003) should allow sufficient time to unravel agreements.

  • The work of a task force to advise sports likely to be affected by the loss of tobacco sponsorship should provide adequate help for those affected.

31. These are important considerations. Nevertheless, the Government's argument may underestimate the importance of compensation in the case-law of the European Court of Human Rights under Article 1 of Protocol No. 1. The Court has written—

Compensation terms under the relevant legislation are material to the assessment whether or not the contested measure respects the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicants. In this connection, the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 only in exceptional circumstances. Article 1 does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of "public interest" may call for less than reimbursement of the full market value.[30]

32. On this view, the question is not simply whether the denial of compensation could be seen as proportionate, but whether there are 'exceptional circumstances' which justify it. In so far as the Government's argument is directed to something other than the idea of 'exceptional circumstances', there seems to us to be room for further consideration of the reasons for thinking that the circumstances relating to existing sponsorship contracts are exceptional, so that it would not impose a disproportionate burden on parties to the contracts to terminate them under the Bill with no compensation at all. We draw this matter to the attention of each House.

PROHIBITION OF BRANDSHARING

33. In relation to brand-sharing, clause 11 would allow the Secretary of State to make regulations prohibiting or restricting the use of tobacco-related names or emblems in the context of any other service or product, and the use of names or emblems of other products in connection with tobacco products. Since trade names and trade marks are items of property and are possessions within the meaning of Article 1 of Protocol No. 1, any such regulations would need to satisfy the tests set out in the previous section in relation to the second paragraph of Article 1 of Protocol 1. In relation to the public interest and proportionality, the Government says in its reply to the Committee—

Research confirms a link between brandshared products and increased tobacco consumption, in particular it confirms that brandshared products raise awareness of tobacco brands, particularly among the young.

We recommend that this evidence should be made available to each House to enable Members to assess, on the best possible basis, questions of public interest (for example whether the effect of a ban on advertising would be to decrease total cigarette consumption), and hence questions of proportionality.

34. If the evidence supports the claims made for it, the remaining issue under Article 1 of Protocol No. 1 is the intention that no compensation should be paid for interference with existing brandsharing arrangements. In this connection, we draw the attention of each House to the Government's response to the Committee, which makes it clear that any regulations would follow a period of consultation and would allow for a transitional period to enable those affected to adjust their commercial positions. This should be considered in addition to the factors relevant to the need for compensation for interference with property rights, save in exceptional circumstances, outlined above.

ENFORCEMENT POWERS, INCLUDING POWERS OF ENTRY

35. The duly authorised officers of enforcement authorities (see clause 13) would be given powers to enter and inspect premises, require the production of books, documents, data records or products, and require people to supply information and assistance (see clause 14(1)). The requirement to answer questions and produce documents is subject to safeguards which appear to meet the requirements of Article 6.1 of the Convention (see clause 14(3)).

36. The inspection powers can be exercised in any premises other than that used only as a private dwelling house (see clause 14(1)(a)), including, therefore, some premises used for mixed purposes. There is no doubt that such inspections engage the right to respect for private life and the home and correspondence under Article 8.1 ECHR. However, it is likely that the interference authorised would generally be justifiable by reference to Article 8.2. Clause 14 appears to be sufficiently clear and accessible in its terms to meet the requirement of being 'in accordance with the law' for the purposes of Article 8.2. The interference would be for a legitimate purpose under that paragraph, that is for the prevention of crime and, more indirectly, the protection of health. There is little doubt that this would be regarded as a pressing social need for the purposes of 'being necessary in a democratic society'.

37. The only issue which is likely to arise in relation to proportionality is whether the safeguards against abuse are sufficient to provide adequate protection for the right guaranteed in Article 8.1. Where a warrant is issued by a Justice of the Peace or Sheriff under clause 13(4) or (9), the requirement that the Justice of the Peace or Sheriff be satisfied on reasonable grounds that the proposed entries are for the purpose of the proper exercise of the officer's functions seems likely to constitute a sufficient safeguard.

38. The position in relation to entry by a duly authorised officer under clause 14(1), with no specific authorisation beyond his written authority as an officer, is less clear-cut, in view of the potential use of the power to enter and inspect premises which are not only or even primarily business premises, and the failure of clause 14(1)(a) to restrict entry to normal business hours, coupled with the provisions of clause 15 making it an offence to obstruct a duly authorised officer intentionally in the exercise of his functions. However, we draw the attention of each House to the view set out in the Government's reply to us, that the terms of the powers and experience of the use of similar powers under the Consumer Protection Act 1987 make it unlikely that the powers under the Bill relating to enforcement and entry would be abused in such a way as to violate rights under Article 8 of the ECHR.

CONCLUDING COMMENTS

39. In considering the Bill we have been aware that tobacco advertising bans have been struck down as unconstitutional in Canada and the United States of America. In Canada[31] the Supreme Court held, by a bare majority, that a total ban was not sufficiently carefully delimited to ensure that freedom of expression was affected no more than necessary. In the United States of America, a similar conclusion was reached in respect of statutory restrictions on advertising non-smoking tobacco products and cigars, for example banning such advertisements within 1,000 feet of a school.[32] The Supreme Court accepted that there was sufficient evidence to show that the provisions served a substantial state interest, but held that they restricted commercial speech more than necessary to achieve the legitimate objective.

40. We consider that these decisions should be seen in the context of a predilection in north America, and particularly in the United States of America, for strongly upholding people's freedom of speech and freedom of commercial activity against governmental interference. In most European countries and under the law of the European Convention on Human Rights, attachment to individual free speech and commercial freedoms is normally more qualified when those freedoms compete directly with important communal goods. For example, the French Cour de Cassation decided that a French law banning direct and indirect tobacco advertising was compatible with Article 10 of the ECHR as a measure which was a proportionate response to a pressing social need to protect health. We have drawn attention above to potential complications under European Community law, which is largely premised on the importance of free trade.[33] But even here, we have suggested that it is possible that restrictions would be held to be justifiable in the public interest: communal interests in protecting health may appear to have greater weight in Europe than they would be accorded in north America when assessing provisions which restrict freedom of commercial expression.

41. We draw these matters to the attention of each House in the hope that they will help to inform debate on the Bill.


5   Case C­376/98, Federal Republic of Germany v. European Parliament and Council of the European Union (French Republic, Republic of Finland, United Kingdom and Commission of the European Communities interveners); case C­74/99 Reg. v. Secretary of State for Health, ex parte Imperial Tobacco Ltd, ECJ Judgment of 5 October 2000, The Times 10 Oct 2000. Back

6   The correspondence is published as appendices to this Report, pp 1-5 below. Back

7   Tobacco Advertising and Promotion Bill, clauses 2(1), 3 Back

8   ibid., clause 2(2) Back

9   ibid., clause 4(1) Back

10   ibid., clause 4(2) Back

11   ibid., clause 5(1) Back

12   ibid., clause 5(3) Back

13   ibid., clauses 5(4)-(7) Back

14   ibid., clause 5(2) Back

15   ibid., clause 6(1). 'Specialist tobacconist' is defined in clauses 6(2) and (3) Back

16   ibid., clause 9. For a limited defence, see clause 9(4) Back

17   ibid., clause 10. For limited defences, see clauses 10(3), (4) Back

18   ibid., clause 11 Back

19   ibid., clauses 13, 14 and 15 Back

20   See Markt Intern and Beermann v. Germany (1989) 12 EHRR 161 (Article 10.1 protected information in a trade magazine directed to the promotion of economic interests of the traders concerned); Casado Coca v. Spain (1994) 19 EHRR 64 (advertising by lawyers within the protection of Article 10.1).  Back

21  Casado Coca above (a Bar association was held to be entitled to a strict advertising in order to maintain the standard and reputation of the Bar, there being no general agreement about the appropriate level of intervention which was permissible).  Back

22   See, for example, Society for the Prevention of Unborn Children v. Grogan, case C-159/90 [1991] ECR I-4685 (concerning restrictions on the freedom to supply services under Articles 59 and 60 EC); case C-376/98 Federal Republic of Germany v. European Parliament and Council of the European Union, above Back

23   Case 8/74, Procureur du Roi v. Dassonville [1974] ECR 837, CJEC; Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649, CJEC Back

24   Cases C-267 and 268/91, Criminal Proceedings against Keck and Mithouard [1993] I-6097, CJEC Back

25   Case 8/74, Procureur du Roi v. Dassonville [1974] ECR 837, CJEC Back

26   See e.g. Council Regulation (EEC) No. 2075/92 on the common organization of the market in raw tobacco, as amended Back

27   Handyside v. UK (1976) 1 EHRR 737 at paragraph 48 Back

28   Sunday Times v. UK (1979) 2 EHRR 245, paragraph 59 (penalising for contempt of court, on the basis of strict liability, a newspaper which published material judged to be prejudicial to a pending civil trial served a legitimate aim and responded to a pressing social need that was disproportionate to the aim pursued Back

29   Reg. v. Director of Public Prosecutions ex parte Kebilene [2000] 2 AC 326 HL per Lord Hope of Craighead. See Lord Lester of Herne Hill Q.C. and David Pannick Q.C., Human Rights Law and Practice (London: Butterworths, 1999), 73-76 Back

30   Holy Monasteries v. Greece Eur. Ct. HR, Series A, No. 301-A, judgment of 9 December 1994, 20 E.H.R.R. 1, at § 71, citing Lithgow v. United Kingdom Eur. Ct. HR, Eur. Ct. HR, Series A, No. 102, judgment of 8 July 1986, 8 E.H.R.R. 329. See to the same effect Pressos Compania Naviera S.A. v. Belgium Eur. Ct. HR, Series A, No. 332, judgment of 20 November 1995, 21 E.H.R.R. 301, § 38; The Former King of Greece v. Greece, above, § 89 Back

31   RJR-MacDonald v. Attorney-General of Canada [1995] 3SCR 199 Back

32   Lorillard Tobacco Co. v. Reilly, Attorney General of Massachusetts; Judgment delivered 28 June 2001, to be reported in 533 US (2001) Back

33   See, for example, Society for the Prevention of Unborn Children v. Grogan, case C-159/90 [1991] ECR I-4685; case C-376/98 Federal Republic of Germany v. European Parliament and Council of the European Union, above. Back


 
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