Proportionality and intensity of judicial review under EU law: clear as mud?

Christopher Brown

On 17 June 2011 the Court of Appeal gave judgment in an interesting case concerning the legality of a measure prohibiting the use of cigarette vending machines, commonly seen in pubs and bars: R (Sinclair Collis and Another) v Secretary of State for Health [2011] EWCA Civ 437.  It raised the now frequently encountered doctrine of proportionality under EU law. It was common ground that the measure, contained in secondary legislation, was caught by Article 34 TFEU (ex Article 28 EC) on the free movement of goods – most if not all machines are imported from continental Europe – and that the Government’s pleaded justification, namely that the measure pursued the objective of protecting public health, was prima facie a good one (see Article 36 TFEU).  The debate concerned the issue of whether the ban was proportionate.

For those who have not read the judgment, it may come as a surprise to hear that it is some 76 pages long and contains long reasoned judgments from all 3 members of the Court. Why so? The simple answer is that they all approached the matter differently. The majority – the Master of the Rolls (MR) and Arden LJ – came to the same conclusion (just about) but by different means, whilst Laws LJ issued a long dissenting judgment.

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