Information Note on the Court’s case-law 67

August-September 2004

Delbos and Others v. France (dec.) - 60819/00

Decision 16.9.2004 [Section III]

Article 7

Article 7-1

Nullum crimen sine lege

Foreseeability of rules on warnings on cigarette packets: inadmissible

The applicants were production managers or the chief executive of companies belonging to the Philip Morris group. Those companies manufactured severa l brands of cigarettes and distributed them in France. At the material time, the packets of cigarettes that they sold in France carried the message “Smoking seriously damages health”, in accordance with the legislation and regulations adopted in applicatio n of Directive 89/622/EEC of the Council of the European Communities on the labelling of tobacco products. However, the message was preceded by the phrase: “In accordance with Law No. 91-32”. That law transposed the above-mentioned European Directive into French law and regulated, in the context of the Public Health Code, the arrangements for the inclusion of health warnings on cigarette packets sold in France. Those regulations did not provide for the possibility of mentioning Law No. 91-32 on cigarette pa ckets. The European Directive left it to each State’s discretion whether or not to add a mention of this type to the cigarette packets sold in their territory. The French courts considered that by preceding the compulsory health warning “Smoking seriously damages health” with the mention “In accordance with Law No. 91-32”, the applicants had amended the text of the compulsory health warning. Any modification to the text of the compulsory legal health warning represented a breach of the Public Health Code. T he applicants argued that the provisions of the Public Health were limited to prohibiting omission of the compulsory inscription “Smoking seriously damages health” and that, in punishing the addition of a message, the national courts had infringed the prin ciples of strict interpretation of the criminal law and legal certainty. The applicants were found guilty of a breach of the legislation on the labelling of cigarette packets and ordered to pay fines.

Inadmissible under Article 7 – The Court held that it w as apparent from the wording of the relevant domestic law that the legal health message “Smoking seriously damages health” had to appear on all packets on cigarettes in its entirety and without change. Both the omission of this message and changes to its f ormulation clearly constituted an offence. However, it remained to be determined whether the applicants could have foreseen that the mere addition of the message “In accordance with Law No. 91-32” ought to be equated with a change to the legal message. The Comité National Contre le Tabagisme (National Committee against Nicotine Addition) had alerted the applicants to the issue and, the latter having refused to amend the contested packaging, injunction proceedings had been brought against them. Admittedly, t he question raised in the instant case had never been decided by the highest national court with jurisdiction in the matter. However, Article 7 did not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development was consistent with the essence of the offence and could reasonably be foreseen”.

In the instant case, the Public Health Code clearly indicated the text of the compulsory health message, and France had not exercised the option offered by the European Directive authorising a reference to the law. The French court could reasonably have concluded that the addition of a reference to the law on the cigarette packet was equivalent to an alteration to the c ompulsory legal health message and thus constituted an offence. Accordingly, the Court considered that the legal interpretation adopted was foreseeable for the purposes of the Convention, particularly on the part of professionals who were in the habit of s howing considerable prudence in carrying out their tasks and were thus capable of applying great care in assessing the risks involved: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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