A public health organization challenged a government decree that allowed smoking in small cafes and bars that are less than 70 square meters. In this decision the Court applied FCTC Article 8 to the Dutch law. The court found the exception for smoking in small bars to be inconsistent with Article 8.2 of the FCTC requiring legislation to provide effective protection from exposure to tobacco smoke in indoor public places, without exception. The court held this section to have direct effect on Dutch regulations despite the flexibility contained in other parts of the FCTC. The court ultimately set aside the ruling of the lower court and ordered the government to enforce their ruling.
Dutch Assoc. CAN/State of Netherlands, HR, 26 March 2013, Case Number: 200.111.618/01
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
An individual or organization may sue their own government in order to advance or protect the public interest. For example, an NGO may sue the government claiming the government’s weak tobacco control laws violated their constitutional right to health.
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
The WHO FCTC Guidelines are not mandatory for Parties and merely suggest policies, or a discussion on the effect of the Guidelines on national legislation.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"The Court of Appeal therefore also finds that article 8 paragraph 2 Convention has direct effect to the
extent that it concerns the obligation to take effective statutory measures against exposure to tobacco
smoke in "indoor public places".
The Court of Appeal is also of the opinion that the exception for small cafes was laid down contrary to
this obligation under the convention. As found above, small cafes fall under the definition of "indoor public
places". It also cannot be denied that there is no protection from exposure to tobacco smoke in the small
cafes because of this exception. This means that the exception for small cafes is nonbinding due to its
conflict with article 8 paragraph 2 Convention and therefore unlawful. The Court of Appeal hereby also takes
into consideration that this is not a case of a temporary exception which was made by way of a transitional
measure, for example as part of a gradual implementation of the obligations under the convention, but in
order to reverse a protective measure that had been in force since 2008."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
A public health organization challenged a government decree that allowed smoking in small cafes and bars that are less than 70 square meters. In this decision the Court applied FCTC Article 8 to the Dutch law. The court found the exception for smoking in small bars to be inconsistent with Article 8.2 of the FCTC requiring legislation to provide effective protection from exposure to tobacco smoke in indoor public places, without exception. The court held this section to have direct effect on Dutch regulations despite the flexibility contained in other parts of the FCTC. The court ultimately set aside the ruling of the lower court and ordered the government to enforce their ruling.