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Antique ivory dealers lose judicial review of Ivory Act 2018 trading restrictions

Subject: Regulated products/Ivory

Source: British and Irish Legal Information Institute (BAILII)

R on the application of The Friends of Antique Cultural Treasures Limited v

The Secretary of State for the Department of Environment, Food & Rural Affairs

R [2020] EWCA Civ 649

This is an appeal from the judgment ("the Judgment") of Mr Justice Jay ("the Judge") who dismissed a claim challenging the lawfulness of trading restrictions contained in the Ivory Act 2018 ("the Act") which, when brought into force, will introduce wide ranging prohibitions on the domestic and international trade in ivory.

The thrust of the challenge before the Judge was that the prohibitions in the Act went too far and were disproportionate. It is common ground that in principle the trading bans infringe Articles 34 and 35 of the Treaty on the Functioning of the European Union ("TFEU") which prohibit import and export restrictions on trade in goods between the EU Member States (including for this purpose the United Kingdom, which formally left the EU on 31 January 2020 - see paragraph [7] below). It is also common ground that the prohibitions in Articles 34 and 35 do not apply where the trading restrictions are justified on one or more of the grounds set out in Article 36 TFEU and that this includes restrictions justified upon the basis of safeguarding the welfare of animals. Where a Member State invokes the justifications in Article 36 the measure adopted must meet a test of proportionality. The question arising in this appeal is whether the Judge applied the proportionality test correctly.

The appellant mounts a series of challenges to the reasoning of the Judge. The central complaint is that there simply was not and is not sufficient evidence of a proper, scientific, nature to justify the trading bans and that the Judge erred in concluding otherwise. The complaint is directed at (i) the adequacy of the evidence supporting the justifications relied upon to justify the trading bans and (ii) the question whether less restrictive and intrusive but equally effective measures could have been adopted by Parliament than the stringent prohibitions actually imposed.

[Original case report provided by BAILII is acknowledged with thanks. Contains public sector information licensed under the Open Government Licence v3.0. Legaleze is solely responsible for the article or summary.]


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