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Marketing Tobacco Products Has to Comply With Government Regulations: Application Rejected
On 19 June 2018, the Constitutional Court of Moldova delivered a decision of inadmissibility on the constitutional review of a number of provisions of para. 3 of Government Decision no. 613 of 1 August 2017 approving the Sanitary Regulations on health warnings and labelling of tobacco products, tobacco intended for rolling cigarettes and related products. The Government Decision no. 613 of 1 August 2017 was enacted on 1 January 2018. According to para. 3 of this Decision, the stocks of tobacco and related products manufactured prior to the enactment of the decision may be marketed only till the date of 30 June 2018.
The application underlying this case was lodged with the Court by the MP Simion Grișciuc. The applicant thus contended that imposing a time limit, i.e. till 30 June 2018, on the right to market tobacco products with labelling that fails to comply with the requirements provided by the mentioned Decision, which on the other hand were acquired by economic operators prior to its enactment, represents a disproportionate limitation of the right to property of the economic operators in question.
Given that the applicant alleged there is a patrimonial interest of the economic operators to market, including after 30 June 2018, tobacco products with health warnings which do not comply with the Regulation approved by Government Decision no. 613 of 1 August 2017, the Court had to assess whether there is a legitimate expectation of economic operators to enjoy such a patrimonial interest.
When examining the application, the Court noted that the Law no. 124 of 29 May 2015 amended the Law no. 278 of 14 December 2007 on tobacco control with Articles 15- 171, which provide for new conditions on packaging and labelling of tobacco products. Article 15 (7) delegates to the Government the power to set requirements on the design and layout of health warnings and other information to be printed on the unit package and outer packaging. These amendments brought to the Law on tobacco control entered into force on 1 January 2018, however they were published in the Official Journal in 2015.
Considering the particular position the tobacco traders have on the market, the Court did not reach the conclusion that they had ”a legitimate expectation” in trading tobacco products with labels and warnings printed on the package which do not comply with new regulations following the entry into force, on 1 January 2018, of the Government Decision no. 613 of 1 August 2017 or even within the grace period prior to 30 June 2018. These traders had available at least three years to exhaust or, as the case may be, to rationally acquire tobacco products with old labelling or warnings.
In this regard, in a recent case, the European Court examined an allegation of ”a legitimate expectation” made by a company to benefit from a patrimonial interest and decided that given it is an economic operator, it therefore cannot ignore all the information on legal provisions and relevant developments. It was thus rather expected to display a high degree of caution in the pursuit of its activities, and to take special care in assessing the risks that may attach to those activities (see mutatis mutandis, O'Sullivan McCarthy Mussel Development Ltd v. Ireland, 7 June 2018, § 117).
Therefore, the Court declared inadmissible the application on the constitutional review of the text ”till 30 June 2018” of para. 3 of the Government Decision no. 613 of 1 August 2017 Government Decision no. 613 of 1 August 2017 approving the Sanitary Regulations on health warnings and labelling of tobacco products, tobacco intended for rolling cigarettes and related products.
This is an English language courtesy translation of the original press-release in Romanian language.