Case concerning the close ties between the Dutch Government and the tobacco industry: court decision expected on Monday, November 9th, 2015.

By Brigit Toebes, University of Groningen  email b.c.a.toebes rug.nl

Summary in Dutch:  in september 2014 dagvaardde de Stichting Rookpreventie Jeugd de Staat in een zaak betreffende de nauwe banden tussen de overheid en de tabaksindustrie. De zaak is voornamelijk gebaseerd op het WHO-Kaderverdrag inzake tabaksontmoediging van de Wereldgezondheidsorganisatie. Op 9 november doet de rechter uitspraak in deze zaak. Voor een bespreking van deze zaak zie de bijdrage van Brigit Toebes in  Nederlands Juristenblad , Afl 37, 30 oktober 2015 (of email de auteur).

On November 9th, 2015, a court decision is expected in the case concerning the close ties between the Dutch Government and the tobacco industry. The case, which was brought to Court by the Youth Smoking Prevention Foundation, involves an assessment of Article 5(3) of the Framework Convention on Tobacco Control (FCTC), which was adopted within the framework of the World Health Organization in 2003 and which entered into force in 2005. Article 5(3) FCTC requires States Parties to protect their tobacco control and public health policies from commercial and other vested interests of the tobacco industry. A set of implementation guidelines has been adopted clarifying how this provision is to be implemented.

The question that comes into play in the present case is whether this provision has an effect in the Dutch legal order and if so, if it is a provision that is ‘self-executing’ or has so-called ‘direct effect’. Without going into detail here, it is important to note that due to the Dutch ‘moderate monist system’, treaties automatically form part of the Dutch legal order after their ratification. This means that –contrary to states with a dualist system – no further implementing legislation is required for the provisions of the FCTC to be a ‘law’ in the Netherlands. The next step would be to decide whether this provision is self-executing, i.e. freely translated: is the provision sufficiently clear for complainants to rely their case on? Article 5(3) FCTC, in combination with the implementation guidelines, is fairly straightforward: the Netherlands should shield its tobacco policies from the tobacco industry’s interests. The frequent contacts between the Dutch government and the tobacco industry, including company visits, may well fit in the Dutch ‘Poldermodel’, but are not in compliance with Article 5(3) FCTC.

Another interesting dimension in this case is that complainants rely heavily on a set of human rights provisions, in particular the right to health. It will be interesting to see whether the Dutch court is willing to set aside its reluctance to adjudicate cases on the basis of the right to health as an economic and social right.

All in all, the outcome of this case is eagerly awaited. It sets an important example for Dutch legal practice, but also internationally, as contrary to most tobacco casesthis one is instigated by an organization focused on tobacco control, and not by the tobacco industry.