Argument: Right of Freedom of Movement and Residence

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Cubacigar Benelux NV v. State of the Netherlands (Ministry of Health, Welfare and Sport) [Netherlands] [June 30, 2020]

Cubacigar Benelux NV (Cubacigar) appealed a lower court decision upholding packaging restrictions contained in the Tobacco and Smoking Regulations. Specifically, Cubacigar had challenged restrictions limiting the use of metallic foils and embossing (“glitter and glamor” elements) on cigar boxes. The lower court held that these restrictions in the Tobacco and Smoking Regulations did not conflict with the EU Tobacco Products Directive. The court also determined that although the packaging requirements restricted the free movement of goods, the requirements were justified from a public health point of view because they are aimed at reducing the attractiveness of tobacco products. Further, the requirements of the principle of proportionality were also met.

On appeal, the Court of Appeal upheld the lower court's decision that the packaging requirements under the Tobacco and Smoking Regulations are in line with the EU Tobacco Products Directive. The Court concluded that the government presented sufficient evidence demonstrating that the measures are justified on grounds of public health protection and are proportionate.

Sinclair Collis Limited v. Lord Advocate for Scotland, et al. [United Kingdom] [May 13, 2011]

A tobacco vending machine company challenged the legality of a section of a tobacco control law prohibiting tobacco vending machines. The petitioner argued that the law violates the right to free movement of goods between EU member states and infringes their right to property. The court upheld the law, concluding that the law is valid because of its legitimate public interest in preventing young people from having access to cigarettes from vending machines.

NYC C.L.A.S.H., Inc. v. City of New York, et al. [United States] [April 21, 2004]

An association of smoking proponents challenged the constitutionality of tobacco control regulations in New York City that prohibit smoking in most indoor public places, including bars and restaurants. The Court found that the plaintiff had standing to bring the issue before the Court and that the issue was justiciable.  The Court, however, granted the defendants' motion for summary judgment and disposed of the matter, finding that the regulations do not violate smokers' rights to association, assembly, speech, travel, equal protection, contract, or due process. The Court further held that the bans are not arbitrary but were rationally enacted based on scientific evidence to address legitimate state interests.  (The attached copy of the court's decision was obtained from Action on Smoking and Health (ASH) (