DELBOS AND OTHERS v. FRANCE
Inadmissible
The first applicant, Mr Dettmar Delbos, is a German national who was born in 1950 and lives in Munich. The second applicant, Mr Guy Goeffers, is a Belgian national who was born in 1946 and lives in St Petersburg. The third applicant, Mr Jan Willem Schipper, is a Netherlands national who was born in 1941 and lives in Breda. The applicants were represented before the Court by Mr D. Foussard, of the Conseil d’Etat and Court of Cassation Bar, and Mr P. Xavier-Bender, of the Paris Bar. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant is the production manager of Philip Morris GmbH, a company incorporated under German law. The second applicant is the production manager of Philip Morris Holland B.V., a company incorporated under Netherlands law. The third applicant is the managing director of Philip Morris Holland B.V. These two companies manufacture several brands of cigarettes and distribute them in France. In accordance with the legislation and regulations passed pursuant to Council Directive 89/622/EEC of the Council of the European Communities of 13 November 1989, they printed the words “Tobacco seriously damages health” on one side of the cigarette packets sold on the French market. However, the message was preceded by the phrase “According to Law no. 91-32”. On 16 September 1996 the National Anti-Smoking Committee (Comité national contre le tabagisme – “the CNCT”) brought proceedings against Philip Morris Holland B.V. and Philip Morris GmbH, and against the three applicants in their capacity as managers of the companies, in the Quimper Criminal Court. It accused them, inter alia, of breaching Article L. 355-27 of the Public Health Code and the Order of 26 April 1991 (see below) by printing that phrase on the cigarette packets. On 13 November 1997 the Criminal Court found the applicants guilty of the offence punishable under Article L. 355-31 of the Public Health Code. It sentenced them to a fine of 150,000 French francs (FRF) each and declared Philip Morris Holland B.V. and Philip Morris GmbH jointly and severally liable for payment. It also ordered the applicants and the two companies jointly and severally to pay FRF 400,000 in damages to the CNCT. The judgment states, inter alia, the following: “... The addition of the phrase ‘According to Law no. 91-32’ ... Under Article 4.3 of the Directive of the European Council of 13 November 1989, ‘member States may stipulate that the warnings referred to in paragraphs 1, 2 and 2a be combined with the indication of the authority that is their author’. The French State has not opted to do so. It is clear [from Article L. 355-27 II and III of the Public Health Code, Article 9 of the Order of 26 April 1991 and Article 4.3 of the aforementioned directive] that there is an obligation to print health warnings aimed at informing consumers and, accordingly, complying with the formal requirements binding on cigarette manufacturers; that the possibility of adding an indication of the authority that is their author is in all cases reserved to member States of the EEC alone; and that on pain of breaching those provisions cigarette manufacturers must print at least the minimum statutory message, the wording of which is strictly defined by the legal provisions, and can only supplement it on condition that the addition reinforces the message. That is not the case regarding the phrase ‘According to Law no. 91-32’ which Philip Morris B.V. and Philip Morris GmbH have printed before the health warning on cigarette packets since that addition distorts the meaning of the message in question by weakening its import because it may suggest that the basis for alerting consumers to the harm done by tobacco is not medical but legal, whereas the harmfulness of tobacco has been proved by recognised scientific studies. Under the aforementioned provisions, the phrase in question is therefore unlawful. Despite having been warned by letters of 4 April 1993, 12 May 1993 and 2 April 1995 [from the CNCT] that the packets they were manufacturing and importing into France did not comply with the applicable regulations, the Philip Morris company managers refused to change the packaging even when injunction proceedings to that end were brought against them in the Quimper tribunal de grande instance in June 1995. The wilful and persistent violation of the applicable legal and regulatory provisions attest to the guilty intention of the defendants, who cannot validly rely on the fact that the additional phrase in question had been tolerated for twenty years in France since that tolerance did not create rights. Nor can they properly argue that it was compulsory in their country of origin since that fact does not alter their liability under French law. The three elements – statutory, material and intentional – of the offence constituted by the unlawful addition of the words ‘According to Law no. 91-32’ therefore appear to have been made out. ... Responsibility for the offence It is not disputed that at the material time Jan Willem Schipper was the managing director of Philip Morris Holland B.V., Guy Goeffers the manufacturing director of that company and Dettmar Delbos the production manager of Philip Morris GmbH ... ... it would appear that, having regard to their level of responsibility and their sphere of action, the three [applicants] (managing director and manufacturing directors) could not have been unaware of the particular sphere of application of the relevant French regulations and were under a duty to ensure that their manufacturing processes complied with those regulations. ...” In a judgment of 4 February 1999, the Rennes Court of Appeal modified the sentence imposed by the lower court – increasing it to a fine of FRF 300,000 against each applicant – and upheld the remainder of the judgment. The Court of Appeal indicated, in particular: “... Article L. 355-27 of the Public Health Code requires that both a general and a specific health warning be printed on cigarette packets in accordance with the terms of the implementing decree of 26 April 1991, which uses the terms ‘notice’ and ‘specific message’. These terms presuppose the transmission of information in writing. It is clear from those provisions that if the warning is worded in such a way that, for reasons of form or presentation, it no longer constitutes the ‘message’ or ‘notice’ required by the Code the law will have been breached. The phrase ‘According to Law no. 91-32’ indicates the authority that is the author of the warning elliptically, with a misleading definition and only a vague reference to the identity (references to legislation customarily being made by the date or sometimes by the date and number, but never the latter alone); the conclusion must therefore be drawn that the phrase ‘According to Law no. 91-32’ is not informative. An examination of the wording used shows that a distancing effect is created between the emitter of the message and the opinion of its author. That distancing effect can only be perceived by readers as a formally neutral position to which they do not have to adhere and which is open to criticism. It amounts to a form of implicit comment on a compulsory and unjustified measure, which absorbs and transforms the sense of the health message. These considerations show that the obligation to provide the statutory information is circumvented in such a way as to load the wording of the compulsory notice with an implicit but clear meaning that twists and distorts the sense and import of the statutory message. The conclusion that has to be drawn in these circumstances is that where the statutory message is combined with the words ‘According to Law no. 91-32’ it is emitted in conditions which breach Article L. 355-27 of the Public Health Code. [The applicants] cannot justify infringing the law on the basis of foreign practices or obedience to a European directive in a situation in which the directive was not binding on them and, moreover, they have respected neither the letter nor the spirit of it. The intentional element is sufficiently made out by the subtle nature of the enigmatic wording of the text added to the statutory message, which allows it both to avoid conveying any information and potentially to take refuge behind the legislative authority. ...” The applicants appealed on points of law against that judgment. Relying on, inter alia, Article 7 of the Convention, they argued in particular that in finding them guilty of a criminal offence, whereas Article L. 355-27 II of the Public Health Code and Article 9-1 of the Order of 26 April 1991 did not penalise an addition such as ‘According to Law no. 91-32’ before ‘Tobacco seriously damages health’, the lower courts had violated the principle that only the law can define a crime and prescribe a penalty and the principle that the criminal law must be strictly interpreted. They added that Article L. 355-31 of the Public Health Code was in any case imprecise and that the lower courts should therefore have refused to apply it. On 15 February 2000 the Criminal Division of the Court of Cassation dismissed the appeal on the following grounds: “... As stated in the Court of Appeal’s judgment, Dettmar Delbos, Guy Goeffers and Jan Willem Schipper, the respective managers of the companies of the Philip Morris group, were prosecuted for adding the words ‘According to Law no. 91-32’ before the health warning ‘Tobacco seriously damages health’ on cigarette packets marketed by the companies. In holding that the offence had been made out, the Court of Appeal found that by modifying the text of the general health warning required by the legal and regulatory provisions the defendants had distorted its meaning. Accordingly, the Court of Appeal justified its decision. As the optional provisions of Article 4.3 of Directive 89/622/EEC of 13 November 1989 were not transposed into domestic law, any alteration of the text of the health warning required by the provisions of Article L. 355-27 II of the Public Health Code amounts to an offence punishable under Article L. 355-31 of the Public Health Code. ...” On 13 November 1989 the Council of the European Communities adopted Directive 89/622/EEC on the approximation of the laws, regulations and administrative provisions of the member States concerning the labelling of tobacco products. Article 4 (as amended by Directive 92/41/EEC of 15 May 1992) was worded as follows: “1. All unit packets of tobacco products shall carry, on the most visible surface, the following general warning in the official language or languages of the country of final marketing: Tobacco seriously damages health. 2. With regard to cigarette packets, the other large surface of the packet shall carry, in the official language or languages of the country of final marketing, specific warnings alternating in accordance with the following rule: – each member State shall draw up a list of warnings taken exclusively from those listed in Annex 1, – the specific warnings selected shall be printed on the unit packets so as to guarantee the appearance of each warning on an equal quantity of unit packets, with a tolerance of around 5%. 2a. ... 3. Member States may stipulate that the warnings referred to in paragraphs 1, 2 and 2a be combined with the indication of the authority that is their author. 4. On cigarette packets the warnings provided for in paragraphs 1 and 2 shall cover at least 4% of each large surface of the unit packet, excluding the indication of the authority provided for in paragraph 3. This percentage shall be increased to 6% for countries with two official languages and to 8% for countries with three official languages. The required warnings on the two largest surfaces of each cigarette packet: (a) shall be clear and legible; (b) shall be printed in bold letters; (c) shall be printed on a contrasting background; (d) shall not be printed in a place where they may be damaged when the package is opened; (e) shall not be printed on the transparent wrapper or any other external wrapping. ...” That directive was transposed into French law by Law no. 91-32 of 10 January 1991. The following Article was thus inserted into the Public Health Code: “... II. Every unit packet of tobacco or tobacco products shall carry, in accordance with the terms and conditions specified by order of the Minister of Health, the notice ‘Tobacco seriously damages health’. ... III bis. All unit packets of tobacco and tobacco products shall carry, in the manner determined by an order of the Minister of Health, a specific health message. ...” On the basis of those provisions, the Minister of Health issued an order on 26 April 1991 “determining the methods for analysing the nicotine and tar contents and the methods for verifying the accuracy of the notice on packaging and the manner in which the health messages and compulsory notices should feature on packets of tobacco and tobacco products”, Article 9 of which was worded as follows: “1. All unit packets of tobacco and tobacco products shall carry, on the most visible surface, the following general warning: ‘Tobacco seriously damages health’. 2. With regard to cigarette packets, the other large surface of the packet shall carry one of the following specific warnings: Smoking causes cancer; Smoking causes heart disease; Smoking when pregnant harms your baby; Smoking damages the health of those around you; Don’t smoke if you want to stay healthy. ... 4. On cigarette packets the warnings provided for in paragraphs 1 and 2 shall cover at least 4% of each large surface of the unit packet. The required warnings on the two largest surfaces of each cigarette packet (a) shall be clear and legible; (b) shall be printed in bold letters on a contrasting background; (c) shall not be printed in a place where they may be damaged when the package is opened; (d) shall not be printed on the transparent wrapper or any other external wrapping. ...” Under Article L. 355-31 of the Public Health Code, “anyone who commits a breach of the provisions [of Article] L. 355-27 shall be liable to a fine of between FRF 50,000 and FRF 500,000”. Article L. 355-32 authorised “associations that [had] been formally registered for at least five years at the material time and whose articles of association includ[ed] the fight against smoking [to] exercise the rights conferred on civil parties in respect of [the above-mentioned offence]”.