The Public Health (Tobacco) Act, 2002 (also here), as amended in 2004 (also here) – and in particular Part 3 of the 2002 Act – constitute a comprehensive control on the sale and advertising of tobacco (the Office of Tobacco Control has a comprehensive list of the relevant legislation), and the legislation largely gives effect to EU law in this field. In particular, Section 33 of the 2002 Act as amended by section 5 of the 2004 Act prohibits advertising of tobacco products and section 43 of the 2002 Act as amended by section 14 of the 2004 Act requires vendors to ensure that tobacco products are kept in a closed container that is not visible or accessible to customers. These and related provisions were brought into force by the Public Health (Tobacco) Act 2002 (Commencement) Order 2008 (S.I. No. 404 of 2008) (also here) and took effect on 1 July of this year. Dublin solicitors Matheson Ormsby Prentice have a helpful description of the restrictions here. Now, today’s Sunday Times brings news that these prohibitions are to face a legal challenge in the Irish courts:

Philip Morris sues Irish government on tobacco ban

Tobacco giant Philip Morris International is to launch a legal action against the Irish government over its ban on the display of cigarettes in shops. …

The restriction on displaying tobacco products on shelves came into force in Ireland on July 1 and a similar prohibition is being discussed in the UK [Holyrood | Westminster]. … The governments of both countries believe forcing shops to stock cigarettes under the counter, where they cannot be seen by consumers, is an effective measure to combat the problem of teenage smoking. …

Philip Morris, which is being advised on the case by Matheson Ormsby Prentice, an Irish law firm, claims that the ban is anti-competitive because it favours those manufacturers who already have a large market share through the sale of cheaper brands. … The US company will argue that if retailers are unable to display cigarettes, smokers are more likely to stick with the brands they currently buy. …

In cases C-376/98 Germany v Parliament and Council 2000 E.C.R. I-8419 and C-74/99 Imperial Tobacco 2000 E.C.R. I-8599, the European Court of Justice struck down the Commission’s first set of rules on this issue on the grounds that they had not been adopted on the correct basis. This was relatively easy to correct: the Commission adopted a similar set of rules on another basis, and in another challenge by Germany, the ECJ upheld the new rules in Case C-380/03 Germany v Parliament and Council (noted by EU Law Blog and IRIS Merlin). Now that the EU rules have a valid legal basis, the next question becomes whether they infringe other provisions of the EU Treaties, and that is in effect the issue which Philip Morris seek to test; in particular, it seems that they are arguing that the display prohibitions infringe the competition provisions of the EU Treaty. Because of the EU background to the display restrictions and the competition arguments, the matter will doubtless end up in the European Court of Justice, and we will not see a resolution for quite some time.

However, if the competition law issues are to get an airing, what about the freedom of expression issues? Read the rest of this entry »

On the sin of mobile or cell phones ringing in class, here’s a YouTube clip of Hugh Jackman stopping a performance because a phone is going off (and remains unanswered and unsilenced for quite a long time!):

As usual, the BBC has more detail. Of course, it’s not the first time that an actor has been annoyed by interrupting phones: like Jackman, but unlike David Suchet Richard Griffiths has stopped a play when a phone went off; but, unlike Jackman, he asked the offending audience member to leave. However, angry actors had better beware: don’t smash the phone or throw it at the offender!

Update: the original YouTube video to which I provided a link is down due to a copyright claim by TMZ, presumably relating to the clip to which this post is now linked.

The Hon. Mr. Chief Justice Balakrishnan, Chief Justice of India, will deliver a Guest Lecture at the School of Law, TCD:

Judicial Activism Under the Indian Constitution

It will be held on Wednesday, 14 October 2009, at 6:00 pm in the JM Synge Theatre, Room 2039, Arts Building, Trinity College Dublin (map).

If you would like to attend, please contact the Law School, by email, by mail to School of Law, House 39, Trinity College, Dublin 2; by phone to (01) 896 2367 or by fax to (01) 677 0449.

It promises to be an interesting evening. The label “judicial activism” is often used loosely, sometimes to describe the judicial process, sometimes to castigate judges as failing to confine themselves to reasonable interpretations of laws, and instead substitute their own political opinions for the applicable law. I particularly reocmmend the posts on Balkinization. The issue, a long-time staple of constituitonal jurisprudence, came to the fore again during the confirmation hearings for US Supreme Court justice Sonia Sotomayor. But the debate is not confined to the US: rather, it arises where-ever there are Courts – so judges in Canada, Australia, the European Court of Justice, and Ireland are all routinely praised and criticised accordingly. The perspective from another court and another country will be fascinating indeed.

Cases from the European Court of Justice, holding that national tax provisions are inconsistent with EU law, just seem to keep on coming. The most recent is a decision of the ECJ yesterday in Case C-569/07 HSBC Holdings plc and Vidacos Nominees Ltd v The Commissioners of Her Majesty’s Revenue & Customs, which held that the levying of stamp duty reserve tax on a transfer of shares in France as part of a cross-border acquisition, pursuant to section 96 of the Finance Act 1986, was inconsistent with EU law (in particular, Article 11(a) of Council Directive 69/335/EEC of 17 July 1969 (pdf) concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985). The Guardian’s report of the case is typically angst-ridden:

Treasury faces £5bn bill over European tax ruling

European court judgment over UK tax on firms that issue new shares abroad could be costly for British government

The taxpayer faces a bill potentially as high as £5bn following an obscure tax ruling on the issuance of shares by companies made today by the European court of justice. HSBC won an award of £27m plus interest from Revenue & Customs, after a long-running case in which the bank argued that the 1.5% tax it had been forced to pay on new shares it issued in 2000 in France broke EU law. … But the court ruled in HSBC’s favour and said that the tax contravened the EU’s capital duty directive. Revenue & Customs said it would stop levying the tax immediately, but would seek other ways to claw back the lost revenue. …

Craig Leslie, head of stamp taxes at PricewaterhouseCoopers, said that the refunds for taxes paid on share issuance in Europe were likely to be in the region of £1bn. But he added that the court ruling would open the way to further challenges by companies that had issued shares in the United States, and the figure could easily jump to about £5bn, given that shares issuance by British companies in the US was much larger than in the rest of Europe. …

The Independent and the Financial Times both quote the £5bn figure; however, more apocalyptically, the Telegraph reports that it could cost $20bn; the Daily Mail (gleefully) reported it as another headache for the Chancellor; whilst the Wall Street Journal was more restrained, simply referring to a significant tax loss for UK authorities. The Times observed that this is the latest in a series of legal defeats for HMRC, giving rise to many refund claims which must be paid with compound rather than simple interest. The pending appeals in the FII and Chalke cases should sort out the principles on which Revenue & Customs will have to make restitution plus interest.

The aim of Directive 69/335/EEC is to promote the free movement of capital, in part by prohibiting indirect taxes with the same characteristics as the capital duty or the stamp duty on securities whose retention might frustrate that free movement. Hence, Article 11 of the Directive provides that Member States cannot charge tax on “the creation, issue, … or dealing in stocks, shares or other securities”; however, Article 12(1)(a) goes on to provide that Member States may charge “duties on the transfer of securities”. In HSBC Holdings, a UK bank, HSBC, made a bid – partly in cash, and partly on the basis of a share swap – to take over a French bank, CCF. After the bid was accepted, HSBC shares were transferred to CCF shareholders via Sicovam (the French settlement system at the time, equivalent to CREST); and – to sweeten the pill for the CCF shareholders – HSBC paid the stamp duty reserve tax that arose on the transfers. Having paid, HSBC argued that the stamp duty reserve tax was within the prohibition in Article 11(a), whilst the Revenue sought to rely on the exemption in Article 12(1)(a). The ECJ held (at para [34])) that Articles 11(a) and 12(1)(a) established a clear distinction between the concepts of ‘issue’ and ‘transfer’, and continued:

[35]. Therefore, the initial acquisition of securities immediately consequent upon their issue cannot be considered to constitute a ‘transfer’ within the meaning of Article 12(1)(a) of the Directive, and, accordingly, a tax on that initial acquisition cannot fall within the derogation under that provision. …

[37]. In the light of those considerations, it must be held that, to the extent that a tax such as SDRT is levied on new securities following an increase in capital, such a tax constitutes taxation for the purposes of Article 11(a) of the Directive which is prohibited by that provision.

Stamp duty of share transfers in Ireland applies to transfers of shares in Irish incorporated companies, whether that transfer is executed in Ireland or abroad, and, at 1%, it is the highest rate in the EU. How vulnerable is it in relation to cross-border transactions after the HSBC decision?

I suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).

First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:

Joyce estate settles copyright dispute with US academic

The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).

Second, I have long been of the view that hecklers should not be allowed to veto unpopular views, and none come more unpopular that holocaust-denier David Irving. Now comes news that NUI Galway’s Lit & Deb society have withdrawn their controversial invitation to Irving for security reasons:

David Irving address in NUIG cancelled due to ‘security concerns’

The proposed visit of the controversial historian David Irving to the NUI, Galway Literary & Debating Society has been cancelled. In a statement the Lit & Deb said the cancellation was “due to security concerns and restrictions imposed by the university authorities”. …

Read the rest of this entry »

No, not the Irish Supreme Court, but the new UK Supreme Court. There’s quite a lot of coverage in the UK media and blawgopshere today about the new Court at the apex of UK’s judicial system, which opens for business today, on time and on budget, in a refurbished former criminal court, after a difficult gestation. David Pannick argues in the Times today that, however unhappy its origins, the opening of a new Supreme Court is an important commitment to the rule of law. Much of the media interest turns on the fact that the Court will be televised. For example, one of the pieces in the Times is headlined that TV coverage means justice really will be seen to be done:

The reform has taken a number of steps over 20 years: a Bar Council report chaired by Jonathan Caplan, QC, in 1989, the filming of parts of the Shipman inquiry and the Hutton inquiry and the 2004 pilot project in the Court of Appeal all moved the issue of cameras in court forward. … The footage will be filmed and recorded by the court and made available by a feed to broadcasters, … [and] can be used only for news, current affairs and educational and legal training programmes.

Read the rest of this entry »