Dutch Non-Smokers Association CAN v. Netherlands
A public health organization (CAN) challenged a provision of the Tobacco and Smoking Products Act that permitted the establishment of smoking rooms in catering facilities. CAN argued that Article 8(2) of the WHO Framework Convention on Tobacco Control (FCTC) has direct effect and, therefore, this exception to the smoking ban should be considered non-binding because it conflicts with a higher law - the FCTC. The District Court ruled that FCTC Article 8(2) did not have direct effect and, therefore, could not be invoked in this case. CAN appealed this ruling.
On appeal, the Court concluded that FCTC Article 8(2) has direct effect and rejected the State's argument that the exception in the law is intended as a transitional measure. The Court stipulated that the FCTC Article 8 Guidelines "must be taken into account when interpreting Article 8 paragraph 2 of the WHO FCTC." Taking the Guidelines into account, the Court concluded that it is clear that separate smoking rooms "do not provide adequate protection against exposure to tobacco smoke" and, therefore, the exemption for smoking rooms in catering establishments is "contrary to Article 8(2) of the WHO FCTC."