Tobacco Advertising Complicity
LexInter | June 26, 2003 | 0 Comments

Tobacco Advertising Complicity

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, CRIMINAL CHAMBER, in its public hearing held at the Palais de Justice in PARIS on March 18, two thousand and three, delivered the following judgment:

On the report of Mrs. the referendum advisor AGOSTINI, the observations of the professional civil society MASSE-DESSEN and THOUVENIN, of Mr. BOUTHORS, lawyers in the Court, and the conclusions of Mr. Advocate General CHEMITHE;

Ruling on the appeals brought by:

– X … Klaus,

– Y … Jacques,

– Z … Patrick,

– THE COMPANY JT INTERNATIONAL FRANCE, under the rights of the COMPANY RJ REYNOLDS TOBACCO FRANCE, civilly liable,

against the judgment of the court of appeal of VERSAILLES, 9th chamber, dated March 27, 2002, which, in the procedure followed against the first three for indirect advertising in favor of tobacco, has, on referral after cassation, pronounced on civil interests;

Joining the appeals because of the relatedness;

Considering the briefs produced in demand and in defense;

Whereas it follows from the judgment under appeal that, during 1993, men’s clothing of the Winston Spirit brand was marketed by the company Menswear Spirit France, created in April 1993 and registered in the trade and companies register the following May, and authorized by Worldwide Brands INC (WBI), a subsidiary of the Reynolds Tobacco group and owner of the Winston trademark, to use it; that the clothes were the subject of an advertising campaign in the written press;

That at the end of a judicial investigation opened on the complaint with constitution of civil part of the National Committee against the smoking, Klaus X … and Jacques Y …, leaders of the company Reynolds Tobacco France which advises the company RJ Reynolds Tobacco Gmbh, responsible for the marketing of Winston brand cigarettes in France, on the one hand, and Patrick Z … marketing director in France of the WBI company, on the other hand, were referred to the criminal court for indirect tobacco advertising; that they were condemned by the first judges for complicity in this offense;

In this state;

On the first ground of appeal, alleging violation of articles 385 and 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis;

“in that the judgment under appeal rejected the objections raised by three defendants (Jacques Y …, Klaus X … and Patrick Z …, applicants) and tending to the nullity of the procedure followed against them. complicity in indirect tobacco advertising;

“on the grounds that the defendants had raised for the first time before the referring court the violation of Article 385, paragraph 2, of the Code of Criminal Procedure which the Court of Paris had raised of its own motion by holding that no document of the procedure did not justify the referral to the investigating judge by the public prosecutor; that they maintained that such a nullity, which came under procedural public order, determined the conditions for the existence of the public action and imposed the referral of the proceedings to the public prosecutor to enable them to seize the examining magistrate;

that however it resulted from the terms of Article 385 of the Code of Criminal Procedure that such nullity had to be raised before any defense on the merits; that the defendants, who presented it for the first time before the referring court, had to be declared inadmissible in their exception;

“whereas, as it was invited, the Court of Appeal had to find, if necessary ex officio, that the lack of prior referral of the file to the public prosecutor so that he again seizes the judge. the instruction constituted such a serious irregularity that the order for referral issued on January 15, 1998, without this substantial formality having been complied with, had to be considered as non-existent and that, consequently, the subsequent procedure was null, the correctional court not having been able to be validly entered by a non-existent procedural document “;

Whereas, to declare inadmissible the objection of nullity of the order for referral presented by the defendants and taking into account the disregard of the provisions of article 385, paragraph 2, of the Code of Criminal Procedure, the Court of Appeal states that the exception was not raised before any defense on the merits;

Whereas by ruling thus, the Court of Appeal, which made an exact application of article 385, last paragraph, of the said Code, justified its decision;

From which it follows that the plea must be rejected;

On the second ground of appeal, alleging violation of Articles 28, 30, 49 and 234 of the Treaty of Rome, L. 3511-3, L. 3511-4 and L. 3512-2 of the Public Health Code, 591 and 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis;

“in that the judgment under appeal decided that the provisions of the law of January 10, 1991 were not contrary to Community law and consequently not only declared three defendants (Patrick Z …, Klaus X … and Jacques Y …, plaintiffs) guilty of complicity in indirect advertising in favor of tobacco but, in addition, condemned them to damages against the civil party, while declaring the company JT International France (also plaintiff), formerly called Reynolds Tobacco France, civilly responsible for Klaus X … and Jacques Y …;

entry into force of the Evin law) that tobacco consumption in France had not stopped decreasing while it had increased regularly until that date, and that, on the other hand, several studies had confirmed the impact the advertising budget of a tobacco brand on the consumption of young people; that therefore French legislation was compatible with Community law; that it was therefore necessary to reject the request of the defendants to see a preliminary question put to the CJEC on the basis of Article 234 (former 177) of the Treaty of Rome; a tobacco brand on the consumption of young people; that therefore French legislation was compatible with Community law; that it was therefore necessary to reject the request of the defendants to see a preliminary question put to the CJEC on the basis of Article 234 (former 177) of the Treaty of Rome; a tobacco brand on the consumption of young people; that therefore French legislation was compatible with Community law; that it was therefore necessary to reject the request of the defendants to see a preliminary question put to the CJEC on the basis of Article 234 (former 177) of the Treaty of Rome;

“whereas, on the one hand, even when it applies without distinction to national products and to those imported, legislation restricting the advertising or sales promotion of a product constitutes an obstacle to intra-community trade when it is likely to prevent access to the national market for articles from other Member States or to hinder this access more than it harms that of national products; which, therefore, has not legally justified its decision the Court of Appeal which, although it had been formally invited to do so, did not examine whether the ban on advertising in France indirectly recalling the Winston tobacco brand,with a view to promoting the sale of Winston Spirit brand clothing lawfully marketed in other Member States, risked preventing access to the national market of products originating in other Member States or of hindering it more than it impeded that national products, unimportant that the provisions of French law relating to advertising of this type had been applicable to both national and imported products;

“while, moreover, the Court of Appeal did not legally justify its decision, which confined itself to noting that the prohibition enacted by French law to carry out indirect advertising in favor of tobacco is applied both to national products and to those from other Member States, since, even if the legislation complained of applied without distinction to national products and to those imported, from the moment when, as in the present case , the advertising message affected the actual content of the product since it was incorporated therein, its prohibition in France could be such as to compromise free access to the French market for the product concerned, in particular by forcing theimporter to arrange in a different way the presentation of the same articles according to the place of their marketing and to modify the content of the advertising message concerning them, and thus constitute a prohibited obstacle to intra-community trade;

“whereas, on the other hand, the lawfulness of an obstacle to free intra-Community trade presupposes that the prohibition or restriction on imports is justified by the protection of an overriding interest recognized by Community law and proportionate to the latter; that, therefore, the Court of Appeal could not consider that, because tobacco consumption had decreased in France since the entry into force of the law prohibiting indirect tobacco advertising, such a prohibition would have was justified and proportionate to the legislature’s concern to protect public health, without precisely characterizing the causal relationship that there would have been between the prohibition ofadvertise non-tobacco product diversification brands and the level of consumption of tobacco products;

whereas, moreover, in order to verify whether or not the fraudulent restrictive legislation was proportionate to the concern to protect public health, the court of appeal had to determine whether this objective could not be ensured by the implementation of other rules a general and absolute ban, just as adequate and less restrictive for intra-community trade;

“whereas, in the alternative, in application of Article 234 of the Treaty of Rome, it is necessary to put to the Court of Justice of the European Communities the preliminary question of whether they are compatible with the principles of Community law prohibiting any obstacle to the freedom of movement of products and services between Member States, the absolute ban on advertising under a diversification brand reminiscent of a tobacco brand, in favor of a product other than tobacco legally imported and marketed in the other member states of the community, and the resulting constraint for the manufacturer and the importer to present and market the same product in France under a different brand,as well as whether such a drastic prohibition is justified by the fact that the advertising it condemns is likely to present a danger to public health by misleading consumers and encouraging them to consume tobacco rather than to buy the articles advertised “;

Whereas, in order to rule out the exception of incompatibility of the French law prohibiting direct and indirect advertising in favor of tobacco, henceforth codified in articles L. 3511-1 et seq. Of the Public Health Code, with articles 30, 36 , 56 and 59, now 28, 30, 46 and 49, of the Treaty establishing the European Community, and refuse to refer a preliminary question to the Court of Justice of the European Communities, the second-level judges hold that the provisions criticized, which are ” apply both to national products and to those from other Member States, are justified by the protection of health within the meaning of Articles 30 and 46 and proportionate to this objective as demonstrated by the decrease in consumption since their entry in force ;

Whereas in the state of these statements, from which it follows that the objective of protecting public health pursued by domestic legislation cannot, having regard to the impact, on national tobacco consumption, of advertising or propaganda referred to in Article L. 3511-4, be affected by less restrictive measures, and since the national provisions do not establish arbitrary discrimination or disguised restriction, the Court of Appeal justified its decision with regard to the aforementioned articles of the Treaty;

From which it follows that the plea must be rejected;

On the third ground of cassation, taken from the violation of Articles 7 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1st of additional protocol n ° 1 to this convention, 111-2, 111- 3 and 111-4 of the Penal Code, L. 3511-3, L. 3511-4 and L. 3512-2 of the Public Health Code, 591 and 593 of the Code of Criminal Procedure, together the declaration of the rights of the man and citizen of 1789, lack of motives and lack of legal basis;

“in that the judgment under appeal decided that the provisions of the law of 10 January 1991 prohibiting indirect advertising in favor of tobacco were not contrary to the European Safeguard Convention and consequently not only declared three defendants (Patrick Z …, Klaus X … and Jacques Y …, applicants) guilty of complicity in indirect advertising in favor of tobacco but, in addition, ordered them to pay damages against the civil party, while declaring the company JT International France (also plaintiff), formerly called Reynolds Tobacco France, civilly responsible for Klaus X … and Jacques Y …;

they had adopted; whereas it was therefore appropriate to consider that Articles L. 3511-3 et seq. of the Public Health Code did not constitute a violation of the rights guaranteed by the European Convention on Human Rights;

“whereas, on the one hand, the principle of legality of offenses and penalties requires positive law to define the standard in a clear and precise manner; that, consequently, the court of appeal could not limit itself to making state of the terms of the law without verifying, as it was invited to do, that positive law did not clearly define the rules of conduct to be adopted, since the extensive interpretation given to the law by the Court of Cassation when judging that did not benefit from the legal derogation authorizing a company to advertise in favor of a product other than tobacco those which, without constituting legally and financially an entity with companies manufacturing, importing or marketing tobacco,linked to it by an indirect or occasional legal or financial link such as a license agreement, not only contradicted the position it had taken in its 1996 annual report under which it had admitted that prohibiting a licensee from promoting products which ‘it was lawfully manufacturing under a trade mark relating to the tobacco industry was both an infringement of the right of tobacco companies to diversify their trade mark and a considerable impediment to freedom of trade, but, in addition, the Council’s solution constitutional which, while considering that the right of ownership of trademarks had not been affected by law,had not called into question the legality of indirect advertising by companies wishing to preserve the heritage value of their brands in order to promote products other than tobacco;

“whereas, moreover, the penal law is of strict interpretation; what disregards this principle the court of appeal which, after not having noted (see judgment under appeal, p. 15) that the legal derogation was interpreted in the sense that ” it was excluded for products marketed by companies which, without constituting legally and financially an entity with those manufacturing, importing or marketing tobacco, were linked to it by a only indirect or occasional link, do not deduce the legal consequences of its findings from which it resulted that the interpretation thus given to the French law amounted to applying the exemption only to the fortuitous cases of a homonymy, which was contrary to the principle ofstrict interpretation of the criminal law which required this exception to be read as not being subject to the existence of a purely accidental report;

“while, on the other hand, the restrictions placed on both freedom of expression and the right to property must meet a pressing special need and be proportionate to it; thus does not legally justify its decision court of appeal which, while recognizing that prohibiting a company from advertising a brand recalling tobacco in order to promote the sale of articles completely unrelated to that product constituted an infringement of freedom of expression as to the right to property, asserts that such an infringement would not only be justified by the desire to protect public health but, moreover, proportionate to the objective pursued, without finding that the advertising in question would have encouraged an increase in the consumption of tobacco and althoughit was manifestly excessive in relation to the concern to protect the consumer, to deprive a diversification company of a tobacco brand with recognized heritage value of any right to exploit it by carrying out advertising to promote the sale of products fully strangers to tobacco, on the sole pretext that the license contract for the clothing brand Winston Spirit of which it was the holder gave it an indirect and distant link with a company which originally manufactured tobacco “;exploit it by carrying out advertising to promote the sale of products totally unrelated to tobacco, on the sole pretext that the license contract of the clothing brand Winston Spirit of which it was the owner gave it an indirect and distant link with a company which originally made tobacco “;exploit it by carrying out advertising to promote the sale of products totally unrelated to tobacco, on the sole pretext that the license contract of the clothing brand Winston Spirit of which it was the owner gave it an indirect and distant link with a company which originally made tobacco “;

Whereas, to set aside the exception raised by the defendants and take into account the conflict between articles L. 3511-3, L. 3511-4, L. 3512-2 of the Public Health Code and articles 7 and 10 of the European Convention on Human Rights and Fundamental Freedoms and 1st of the Additional Protocol, the Court of Appeal states that the clear and precise provisions of the national law are a measure necessary for the protection of health which constitutes a general interest legitimate; that the judges, referring to the impact of advertising on tobacco consumption, add that the restrictions thus placed on freedom of expression and on the right to own trademarks are proportionate to the objective pursued;

Whereas in the state of these statements, the Court of Appeal justified its decision with regard to the aforementioned conventional provisions;

From which it follows that the means cannot be admitted;

On the fourth ground of appeal, alleging violation of Articles L. 3511-3, L. 3511-4 and L. 3512-2 of the Public Health Code, 121-3 and 121-7 of the Penal Code, 591 and 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis;

“in that the judgment under appeal not only declared three defendants (Patrick Z …, Klaus X … and Jacques Y …, applicants) guilty of complicity in indirect advertising in favor of tobacco but, in addition, condemned them to damages towards the civil party, while declaring the company JT International France (also plaintiff), formerly called Reynolds Tobacco France, civilly responsible for Klaus X … and Jacques Y …;

without legally and financially constituting an entity with that which manufactured, marketed or imported tobacco or a product derived from tobacco, were linked to the latter by a legal or financial link, be it indirect or occasional; in the present case, it was established that the Winston brand belonged to the company WBI which was a subsidiary of the RJR Nabisco group, a holding company of the Reynolds Tabacco group which manufactured and marketed cigarettes and that the exploitation of this brand by the Menswear Spirit France, a subsidiary of Shirts International, resulted from the conclusion of a brand license agreement between the latter and WBI, from October 1992, authorizing the marketing of these products in France; that the marketed or imported tobacco or a tobacco product, were linked to the latter by a legal or financial link, whether indirect or occasional; in the present case, it was established that the Winston brand belonged to the company WBI which was a subsidiary of the RJR Nabisco group, a holding company of the Reynolds Tabacco group which manufactured and marketed cigarettes and that the exploitation of this brand by the Menswear Spirit France, a subsidiary of Shirts International, resulted from the conclusion of a brand license agreement between the latter and WBI, from October 1992, authorizing the marketing of these products in France; that the marketed or imported tobacco or a tobacco product, were linked to the latter by a legal or financial link, whether indirect or occasional; in the present case, it was established that the Winston brand belonged to the company WBI which was a subsidiary of the RJR Nabisco group, a holding company of the Reynolds Tabacco group which manufactured and marketed cigarettes and that the exploitation of this brand by the Menswear Spirit France, a subsidiary of Shirts International, resulted from the conclusion of a brand license agreement between the latter and WBI, from October 1992, authorizing the marketing of these products in France; that the whether indirect or occasional; in the present case, it was established that the Winston brand belonged to the company WBI which was a subsidiary of the RJR Nabisco group, a holding company of the Reynolds Tabacco group which manufactured and marketed cigarettes and that the exploitation of this brand by the Menswear Spirit France, a subsidiary of Shirts International, resulted from the conclusion of a trademark license agreement between the latter and WBI, from October 1992, authorizing the marketing of these products in France; that the whether indirect or occasional; in the present case, it was established that the Winston brand belonged to the company WBI which was a subsidiary of the RJR Nabisco group, a holding company of the Reynolds Tabacco group which manufactured and marketed cigarettes and that the exploitation of this brand by the Menswear Spirit France, a subsidiary of Shirts International, resulted from the conclusion of a brand license agreement between the latter and WBI, from October 1992, authorizing the marketing of these products in France; that the exploitation of this brand by the company Menswear Spirit France, a subsidiary of the Shirts International company, resulted from the conclusion of a brand license agreement between the latter and the WBI company, from October 1992, authorizing the marketing of these produced in France; that the exploitation of this brand by the company Menswear Spirit France, a subsidiary of the Shirts International company, resulted from the conclusion of a brand license agreement between the latter and the WBI company, from October 1992, authorizing the marketing of these produced in France; that the 
link resulting from a trademark license contract, whatever its creation date, was such as to prevent the application of the exemption provided for by law; that the advertising campaign for Winston Spirit clothing therefore constituted indirect advertising in favor of illicit tobacco, taking into account the links uniting the business operating the clothing and that marketing cigarettes of the same brand;

“whereas the existence of a brand license contract concluded exclusively between the company marketing items totally unrelated to tobacco (in this case clothing) and the one that only owns the diversification brands of tobacco products could not constitute the legal or financial link with a tobacco company required by law to defeat the legal exemption authorizing companies not legally or financially linked with those manufacturing or marketing tobacco to carry out indirect advertising to promote a product other than tobacco, from so that the material element of the main offense was not established;

“whereas, moreover, the Court of Appeal confined itself to verifying that, according to it, the material element of the main offense of indirect advertising in favor of tobacco was constituted, without characterizing the moral element of the offense attributable to the main author and without responding to the peremptory head of the applicants’ conclusions arguing that this constitutive element was not established since, only the guilty intention of the advertiser being to be taken into consideration, it did not exist among licensees since their sole objective was to promote the Winston Spirit brand clothing which they manufactured and marketed, not cigarettes “;

On the fifth ground of cassation, alleging violation of articles 121-6 and 121-7 of the Penal Code, 591 and 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis;

“in that the judgment under appeal not only declared three defendants (Patrick Z …, Klaus X … and Jacques Y …, applicants) guilty of complicity in indirect advertising in favor of tobacco but, in addition, condemned them to damages towards the civil party, while declaring the company JT International France (also plaintiff), formerly called Reynolds Tobacco France, civilly responsible for Klaus X … and Jacques Y …;

that the second document entitled Strategic Plan 1992-1996 RJ Reynolds Tobacco France expressed the need to implement a gradual change to move from the communication tools currently used to logo licensing activities to ensure continuity in communication by mentioning that RJR France seemed better prepared to face the new legal restrictions and that a creative approach to legal issues as well as a balance between legal risks and expected benefits had to be sought; that the third document called France 1992-1996 communication strategy ordered to stop the cigarette campaigns to focus on the activities of licensing Camel Trophy watches logo, Camel shoes, Winston clothing and wrote in handwriting that communication was still possible but would become more and more complex; that it resulted from the study of these documents that the strategy of diversification of the Reynolds Tobacco group in Europe in different products, in particular Winston Spirit clothing, had been designed and developed by the company WBI – whose representative in France was Patrick Z …, in close collaboration with the managers of the company Reynolds Tobacco France, Klaus X … and Jacques Y …; that the latter had been informed and had approved and integrated into their own communication strategy the trade policies designed to make the best use of the logo activities reminiscent of cigarettes; that It appeared that the defendants had been asked to give their opinion on the disputed plans and had thereby participated in their development and drafting, these having been carried out by the advertisers marketing the clothes and who were the authors principal of the offense; that participation in the development and organization of these plans through alleged diversification campaigns was constitutive of the circumvention of the prohibition imposed by the Evin law;

that such behavior characterized the material element of complicity; that the moral element resulted from what the objective of the defendants consisted of maintaining, despite the ban, advertising in favor of the tobacco brand Winston through the use of new communication tools; indirect advertising for Winston clothing; that the elements of the complicity of indirect advertising in favor of tobacco were therefore met;

“whereas the complicity by collaboration supposes that positive acts of aid or assistance useful for the realization of the principal offense are characterized; that does not legally justify its decision the court of appeal which, to declare the applicants accomplices for having collaborated in the realization of the offense of indirect advertising in favor of tobacco, confines himself to noting that Patrick Z … was representative in France of the company which developed the strategy of diversification of tobacco brands, including the Winston brand, and that Klaus X … and Jacques Y …, informed of this strategy, had approved and integrated it into their own communication tactics and had been asked to give their opinion on the plans which had defined it,not characterizing in this way any positive act establishing any material or intellectual collaboration in the preparation of the incriminated advertising campaign;

“whereas, moreover, the Court of Appeal ruled by way of simple affirmation when, after noting that the strategic plans had concerned the advertising campaigns to be developed in favor of the only diversification activities, in particular the Winston Spirit clothing, she stated that the mental element of the offense would have been that, through the use of new communication tools, the defendants had in fact had the objective of maintaining the promotion of the Winston tobacco brand “;

The means being united;

Whereas, to state the material and moral elements constituting the complicity of illicit advertising in favor of tobacco brought together against the three defendants, the Court of Appeal held that the advertising campaign in favor of Winston Spirit clothing, which recalls, by the calligraphy the Winston brand, a tobacco product, constitutes the material element of the offense of indirect tobacco advertising committed by advertisers; that the judges state that the link born of the brand license contract between the companies Menswear Spirit and WBI is an obstacle to the application of the exemption provided for by article L. 355-26, paragraph 2, now L. 3511- 4, paragraph 2, of the Public Health Code; that finally, they retain that the defendants participated in the development, organization and financing of

Whereas in the state of these statements, proceeding from its sovereign assessment of the facts and circumstances of the case and contradictorily established evidence and responding to the peremptory heads of the conclusions of the defendants, the Court of Appeal, which noted the The existence of a main punishable fact and has made the exact application of Article L. 3511-4, paragraph 2, of the Public Health Code, justified its decision;

From which it follows that the means must be discarded;

And considering that the stop is regular in the form;

DISMISSES the appeals;

Thus judged and pronounced by the Court of Cassation, criminal chamber, in its public hearing, the day, month and year above;

Were present at the debates and deliberations: Mr. Cotte president, Mrs. Agostini advisor rapporteur, MM. Roman, Blondet, Palisse, Le Corroller, Béraudo councilors of the chamber, Mmes Beaudonnet, Gailly, Salmeron referendum advisers;

Advocate General: M. Chemithe;

Clerk of the chamber: M. Souchon;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;

Contested decision: VERSAILLES Court of Appeal, 9th chamber 2002-03-27

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