The Framework Convention Alliance for Tobacco Control

Dutch court first to find that global tobacco treaty can trump national law

By the International Legal Consortium, CTFK

Hotels, restaurants and cafes had been smoke-free in The Netherlands since July 2008. In July 2011, a new decree came into force that exempted small cafes with an area of less than 70 square metres from the smoke-free provision. CAN, a public health NGO, sued the government, claiming the exemption violated Art 8(2) of the WHO Framework Convention on Tobacco Control (FCTC).

The suit also claimed the exemption violated Recommendations of the Council of the European Union, and principles of anti-discrimination, equal treatment, prohibition of arbitrariness and legal certainty. The lower court found CAN's arguments groundless and dismissed the case. But on 26 March, the Court of Appeals of The Hague overturned the lower court's judgment, invalidated the exemption, and ordered the government to enforce the law in full.

We'd like to share some reflections on the importance of this case.

To the best of our knowledge, this case is the first time a court has cited the FCTC as the primary legal justification for overturning a weak tobacco control law. In 2011, a Belgian court cited the FCTC along with several principles of national law when eliminating an exception in a smoke-free law; however, there was little discussion on the effect of the FCTC in that case.

There have also been several cases worldwide where courts have cited the FCTC when upholding legislation, but this Netherlands case is momentous because it is the first to discuss a direct conflict between national law and the FCTC, and hold that the article of the FCTC takes precedence.

The court frames the issue as whether the FCTC has a direct effect on Dutch law. If the treaty lacks clarity or provides too much freedom and discretion to the legislature, then it cannot have a direct effect.

The lower court found that FCTC language for “effective legislative, executive, administrative and/or other measures” gave Member States a great deal of freedom. Furthermore, it found that the existence of FCTC Guidelines further proved that the Convention on its own required elaboration. Accordingly, this lack of clarity and specificity would prohibit the FCTC from having a direct effect, and deny Dutch citizens from being able to invoke its provisions.

However, the Court of Appeals found that that lower court erred when it considered the FCTC as a whole, rather than just FCTC Art 8(2). Without coming to any conclusion on the rest of the FCTC, the Court of Appeals found that Art 8(2) was sufficiently clear and concrete to have a direct effect – both in terms of what is considered effective protection from tobacco smoke, and what is considered an indoor public place.

The Court concluded that the exemption for small cafes was enacted contrary to the FCTC Art 8(2) obligation, and the conflict makes the exemption non-binding. In other words, when there is a direct conflict between FCTC Art 8(2) and national law, Art 8(2) takes precedence.

The holding in this case validates what the tobacco control community has been saying about the FCTC since its inception: it is a legally binding treaty that imposes specific obligations on Member States. This case is hopefully the first of many.

The court also briefly discussed that allowing smoking without restriction in small cafes could not be considered effective protection. Unfortunately, the court did not rule on whether partial measures, such as designated smoking rooms (DSRs), are equally ineffective.

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