The State wants the Commercial Court to refer to the Court of Justice of the EU issues raised in the legal challenge to its plans to introduce plain packaging on tobacco products.

Michael Cush SC, for the State, said certain issues raised in a action brought here by JTI Ireland Ltd were similar to those raised in a separate case already referred to the Court of Justice by the high court of England and Wales. He said the State would be applying to have the JTI case issues also referred to the Court of Justice and heard at the same time as the English case.

The high court of England and Wales has referred to the Court of Justice questions concerning the validity of a 2014 EU directive in a case, also arising from proposals to introduce plain packaging for tobacco products, brought by Philip Morris tobacco company and British American Tobacco against the UK health secretary.

The relevant EU directive – 2014/40/EU – has a stated objective of harmonising labelling and packaging.

Mr Justice Brian McGovern agreed to transfer to the Commercial Court the action by JTI against the Minister for Health, Ireland, and the Attorney General aimed at preventing the coming into law of the Public Health (Standardised Packaging of Tobacco) Act 2015.  The transfer application was made by Paul Sreenan SC, for JTI, and was consented to by the State defendants.

After Mr Cush outlined the State’s intended application for a referral of issues to the Court of Justice, Mr Justice McGovern agreed to adjourn the matter for two weeks to allow for that application to be made.

In its proceedings JTI claims that Ireland, as an EU state, cannot unilaterally introduce plain packaging on its products. The proposal to introduce plain packaging is contrary to EU harmonisation objectives and an obstacle to trade between member states, the company alleges.

JTI claims the Irish legislation imposes stricter rules than those necessary to transpose the 2014 EU directive.

It also alleges the Minister and State do not have the power or competence to derogate from the provisions of the directive. Because harmonisation of labelling and packaging is a stated objective of the EU directive, a member state cannot adopt national measures which further restrict the free movement of goods on grounds of a high level of protection for human health, it alleges.

The new measures, due to be introduced next month, will distort and impair the dynamics of competition in the tobacco market, it also claims.