...

THE FACTS

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.

A.  The circumstances of the case

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.

...”

B.  Relevant Community and domestic law

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:

Article L. 355-27

“...

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]”.

COMPLAINT

Relying on Article 7 of the Convention, the applicants submitted that their conviction was based on a breach of the principle that only the law can define a crime and prescribe a penalty.

THE LAW

(a)  The parties’ submissions

The applicants argued that their conviction was based on a breach of the principle that only the law can define a crime and prescribe a penalty. They submitted in that connection that, in penalising breaches of the rules laid down in Article L. 355-27 II of the Public Health Code, Article L. 355-31 of that Code was limited to punishing omissions to print the notice “Tobacco seriously damages health” on cigarette packets. Thus, by convicting the applicants for adding the words “According to Law no. 91-32”, the domestic courts had disregarded the principle that the criminal law must be strictly interpreted: in punishing an addition whereas only an omission was penalised under the legislation, they had inevitably adopted reasoning by analogy.

The applicants also complained of a breach of the “principle of legal certainty”. In their submission, given the wording of Articles L. 355-27 II and L. 355-31 of the Public Health Code and the lack of uniformity in the case-law on the subject, it was not “reasonably foreseeable” that an addition to the notice required by the first of the Articles referred to could give rise to a criminal conviction. They pointed out that in a case in which the facts were similar to theirs the Paris Court of Appeal, while emphasising that “any criminal-law provision must be strictly construed”, had held that “neither Article 355-27 of the Public Health Code, nor Article 9 of the Order of 26 April 1991 prohibited references to the legal provision in accordance with which the health message was printed on the cigarette packet” (judgment of 20 October 1998). They added that Article 4.3 of Directive 89/622/EEC allowed member States to stipulate that the warnings be combined with an indication of the authority that was their author. Accordingly, if the French authorities had meant to prohibit the addition on pain of criminal penalties, they should have expressly indicated that this was the case. It was inconceivable that conduct that was authorised – or even compulsory – in certain member States of the European Union could be punishable under the criminal law in another member State without a clear criminal-law provision to that effect.

The applicants relied on Article 7 of the Convention, which provides:

“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.  This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Government requested the Court to hold that the application was manifestly ill-founded.

They contended that the applicants’ submission that the domestic courts had inevitably adopted reasoning by analogy was based on the idea that only a failure to print the message “Tobacco seriously damages health” was an offence punishable under Articles L. 355-27 II and L. 355-31 of the Public Health Code. Accordingly, by punishing the addition of the words “According to Law no. 91-32”, the courts had allegedly construed the provisions extensively to the detriment of the accused. In the Government’s submission, the wording of Article L. 355-31 – “anyone who commits a breach of the provisions [of Article] L. 355-27 shall be liable to a fine ...” – sufficed to show that that argument was misconceived. The expression “a breach” could not refer merely to a failure to include the statutory notice “Tobacco seriously damages health”. If the legislature’s intention had been to punish only omissions, it would have specifically referred to the lack or absence of the message. The Government deduced from this that the aim of Article L. 355-31 was clearly to punish any breach of the provisions of Article L. 355-27, which required the notice “Tobacco seriously damages health” to be printed on every unit packet of tobacco. Moreover, the fact that that message was given in quotation marks in Article L. 355-27 showed that the legislature intended to prohibit and punish not only the failure to use it, but also any alterations or additions that had the effect of distorting the presentation and import of the health information contained in it. In the Government’s submission, the addition of the words “According to Law no. 91-32” distorted the import of that information, as the domestic courts had found.

The Government added that the application that had been made of the provision in the instant case had been foreseeable. Firstly, the offence in issue was one of commission. Secondly, as tobacco-sales professionals, the applicants were aware of the risks involved and could reasonably have foreseen, with the assistance of criminal-law specialists if need be, that they might be prosecuted under the criminal-law provisions in question. Thirdly, before the proceedings had been brought against the applicants certain tribunals of fact had given a clear ruling to that effect (the Government referred in that connection to a judgment of the Paris Criminal Court of 26 January 1995 and to the judgment of the Paris Court of Appeal of 1 February 1996 upholding it; they did not produce the decisions). Fourthly, Article 4 of Directive 89/622/EEC specified that member States – the only addressees of the directive, under Article 10 – “may stipulate that the warnings referred to in paragraphs 1 and 2 be combined with the indication of the authority that is their author”. As the French legislature had not elected to do so, it was clear that it did not wish the health warning to be combined with a reference to the authority that was the author. The fact that other States of the European Union had made the converse choice was irrelevant in that regard.

The applicants stressed that the case-law of the Court and domestic positive law prohibited any reasoning by analogy in criminal-law cases. They pointed out that Article L. 355-31 of the Public Health Code provided for an offence by omission. They referred to Article L. 355-27 II of the same Code, according to which “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’ ”. The relevant order provided as follows: “All unit packets of tobacco and tobacco products shall carry, on the most visible surface, the following general warning: ‘Tobacco seriously damages health’.” It was clear from those provisions that operators were exclusively required to comply with the positive obligation to print that warning on the unit packets. The applicants submitted that the reason the French legislature had not decided, as authorised by Article 4.3 of Directive 89/622/EEC, that the message in question had to be combined with an indication of the authority that was its author was purely because it had not wished to oblige operators to print that indication on the packets. No other conclusion could be drawn from this. They added that the judgments referred to by the Government were isolated ones and had no binding authority because they had been delivered by tribunals of fact. Furthermore, the Paris Court of Appeal’s judgment of 1 February 1996 had been quashed by the Court of Cassation and therefore had no further legal existence. It could not therefore be concluded from those decisions that the application of Article L. 355-31 of the Public Health Code to the applicants’ case had been foreseeable.

(b)  Decision of the Court

The Court reiterates that Article 7 § 1 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an “accused’s” disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law (see, for example, Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 22, § 52). This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable (ibid.).

The Court notes next that under Article L. 355-27 II of the Public Health Code “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’ ”. That provision was introduced into the above-mentioned Code by Law no. 91-32 of 10 January 1991, which transposed into French law Directive 89/622/EEC of the Council of the European Communities on the approximation of the laws, regulations and administrative provisions of the member States concerning the labelling of tobacco products, which, inter alia, obliged the member States of the Union to print the warning on cigarette packets (Article 4.1).

The applicants were convicted for adding the words “According to Law no. 91-32” before the aforementioned health warning on the cigarette packets of the brands marketed in France under their responsibility. Their conviction was based on Article L. 355-31 of the Public Health Code, which provides that anyone who commits a “breach of the provisions” of Article L. 355-27 II (inter alia) shall be liable to punishment. In holding that the offence with which the applicants had been charged fell within the scope of Article L. 355-31, the Court of Cassation found on 15 February 2000 that “as the optional provisions of Article 4.3 of Directive 89/622/EEC of 13 November 1989 have not been 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”.

In the Court’s opinion, the wording of Article L. 355-27 II shows that the message “Tobacco seriously damages health” had to appear in full and unaltered – the fact that Article L. 355-27 II cited it in quotation marks is conclusive in this respect – on all cigarette packets. Omitting that message or altering the wording of it was therefore clearly a “breach of the provisions” of Article L. 355-27 II within the meaning of Article L. 355-31 of the Public Health Code. The only question which arises in this case is whether the applicants could have foreseen that the mere addition of the words “According to Law no. 91-32” would be regarded as an alteration of the message and accordingly constituted a “breach of the provisions” of Article L. 355-27 II.

The Court notes first of all that the applicants had been warned by the CNCT that the packets they were manufacturing and importing into France were illegal and that, when they refused to change the packaging, injunction proceedings were brought against them in 1995.

The Court also notes that this aspect of the interpretation of Articles L. 355-31 and L. 355-27 II of the Public Health Code had not been definitively settled by the case-law at the time of the offence for which the applicants were prosecuted, as the Court of Cassation had not yet had an opportunity to make a ruling. It thus appears that the issue was brought before the Court of Cassation for the first time in this case. That is not decisive, however, since Article 7 of the Convention does not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II).

The Court notes that Article 4.3 of Directive 89/622/EEC specified that member States could stipulate that the warnings be “combined with the indication of the authority that is their author” and that this option was not exercised by the French legislature. Moreover, as pointed out by the Court above, the legislature’s intention to keep the message in question intact is clear from the wording of Article L. 355-27 II of the Public Health Code. The Court concludes from this that it was both consistent with the substance of the offence punishable under Article L. 355-31 of the Public Health Code and “reasonably foreseeable” that an addition such as “According to Law no. 91-32” to the statutory warning on cigarette packets marketed in France would be regarded as an alteration of the statutory health message. It reiterates in this connection that the foreseeability of the law is not inconsistent with the person concerned needing to seek appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 71-72, § 37). “This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails” (see Cantoni v. France, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1629, § 35).

It follows that this application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

DELBOS AND OTHERS v. FRANCE DECISION


DELBOS AND OTHERS v. FRANCE DECISION 


DELBOS AND OTHERS v. FRANCE DECISION