Representative Standing and Public Health Licensing Fees: Commentary on CSNA Company Ltd v Minister for Health [2025] IEHC 738

1. Introduction

This High Court judgment in CSNA Company Limited by Guarantee v Minister for Health, Ireland and the Attorney General [2025] IEHC 738 addresses two central themes of contemporary Irish public law:

the limits of representative standing (locus standi) for trade and interest groups in judicial review of regulatory measures; and
the scope of a Minister’s discretion to set licence fees in a public health statute, including whether such fees may be pitched at levels intended to disincentivise harmful activity (here, retailing tobacco products) rather than merely to recover the administrative costs of a licensing system.

The applicant, CSNA Company Limited by Guarantee (“CSNA”), is a trade association representing retailers and newsagents. It challenged the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (Fees) Regulations 2024 (“the 2024 Regulations”), which prescribe significantly increased annual licence fees for retailers selling tobacco and nicotine inhaling products under the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023 (“the 2023 Act”).

Mulcahy J ultimately dismisses the proceedings, primarily on the basis that CSNA lacks standing to challenge the Regulations, and, in any event, upholds the Regulations on their merits. The decision is important for:

reaffirming and sharpening the approach in Cahill v Sutton and Construction Industry Federation v Dublin City Council on representative challenges by trade bodies;
clarifying that a statutory power to prescribe fees for licences in a public health statute is not automatically confined to cost recovery, especially where a previous regime did contain such a limitation and the new act does not; and
illustrating the relatively high threshold for invalidating secondary legislation as irrational or ultra vires where the Minister has relied on a coherent policy briefing and international and domestic comparators.

2. Background and Context

2.1 From registration to licensing

Under the previous regime in the Public Health (Tobacco) Act 2002, as amended, retailers selling tobacco were required to register under s.37 and pay a once-off registration fee of €50. Section 37(2) expressly provided that the fee could be charged “for the purpose of defraying any expense incurred in establishing or maintaining the register”. Thus, the earlier scheme explicitly tied the fee to cost recovery.

The 2023 Act replaces registration with a more intensive licensing system. Retailers wishing to sell tobacco or nicotine inhaling products must apply to the HSE for:

a licence to sell tobacco products;
a licence to sell nicotine inhaling products; or
a licence to sell both.

Section 18 of the 2023 Act states simply that:

“The Minister may prescribe a fee” for an application for a licence, its renewal, or a copy, and “such fee shall be recoverable by the Executive as a simple contract debt” in any court of competent jurisdiction.

Crucially, unlike s.37(2) of the 2002 Act, s.18 does not contain any express reference to defraying the cost of the scheme.

2.2 The 2024 Fees Regulations

Under the 2024 Regulations, due to commence operation on 2 February 2026, the Minister set the following annual fees:

€1,000 for a licence to sell tobacco products;
€800 for a licence to sell nicotine inhaling products; and
€1,800 for a licence to sell both.

The same fees apply on renewal. These represent a very significant increase from the historic €50 once-off registration fee for tobacco retailers.

2.3 The applicant and its challenge

CSNA is a company limited by guarantee representing approximately 1,350 members operating some 1,500 retail outlets. It does not itself sell tobacco; its members do. On 13 March 2025 it issued judicial review proceedings challenging the lawfulness of the 2024 Regulations, particularly as they relate to tobacco products.

CSNA advanced seven grounds. Broadly, it alleged that:

The Minister had acted ultra vires s.18 by using the fee-setting power for an unlawful purpose – effectively to impose an additional tax or excise duty on retailers to disincentivise tobacco consumption, rather than to cover the costs of the licensing system.
Even if that purpose were lawful, the Minister had acted irrationally/arbitrarily in setting the specific fee levels without any proper evidential or methodological basis.
The Regulations were said to have an arbitrary and disproportionate impact, particularly on smaller retailers and on the right to earn a livelihood.
The Minister had allegedly failed to consider relevant factors, including that retailers are required by law to sell tobacco at fixed prices, meaning they could not pass on the licence fees to consumers.

Grounds (vi) and (vii) focused on disproportionate economic impact, especially on “smaller retailers”. Ground (vii) was expressly abandoned at the hearing; CSNA maintained ground (vi) and the purely legal grounds (i)–(v).

3. Summary of the Judgment

3.1 Standing (locus standi)

Mulcahy J holds that CSNA lacks standing to maintain the proceedings:

CSNA is not itself required to pay the licence fees; only its members are directly affected.
Under Cahill v Sutton, a plaintiff challenging legislation must generally show that they are personally affected.
CSNA’s attempt to rely on representative standing fails in light of Construction Industry Federation v Dublin City Council (“CIF”), where a similar trade federation was found to lack standing to challenge a planning contribution scheme affecting its members.
The suggestion that CSNA is indirectly affected by possible future loss of members is regarded as speculative and insufficient.

He therefore concludes that CSNA cannot maintain either:

the factual/economic grounds (such as the alleged disproportionate impact on small retailers); or
the pure legal challenges to the Regulations.

On this basis alone the proceedings should be dismissed.

3.2 Form of proceedings

The respondents also argued that a direct challenge to the validity of a statutory instrument should only be brought by plenary proceedings, not judicial review. Relying on recent Supreme Court guidance in G v Ireland and Donnelly v Minister for Social Protection, the judge accepts that fact-sensitive constitutional challenges to primary legislation should ordinarily be brought by plenary summons.

He notes that some of the economic impact arguments in this case (had they been brought by someone with standing) might well have been more appropriate to plenary proceedings. However, he finds there is no absolute bar to challenging secondary legislation by judicial review, particularly where the key issues are questions of law. He therefore refuses to dismiss on this basis.

3.3 Merits of the legal challenge

Notwithstanding his finding on standing, Mulcahy J proceeds (out of caution and completeness) to address the substantive legal arguments on grounds (i)–(v). He holds that:

The Minister’s discretion under s.18 is not confined to setting cost-recovery fees. The text of the section contains no such limitation, and the public health purpose and legislative history of the Act support a broad regulatory discretion.
The Minister’s purpose in setting the fees – including the aim of disincentivising the sale of tobacco products by some retailers – is a permissible public health purpose and is not an impermissible attempt to impose a disguised excise duty or to close retail outlets.
The decision is not irrational or arbitrary: the Minister relied on a reasoned departmental briefing note drawing on international comparators and domestic analogies (notably alcohol licence fees), and on evidence about the health harms of tobacco.
The Regulations cannot be invalidated simply because there is debate about whether they will be effective in reducing tobacco consumption. The possibility that they may not fully achieve that aim does not render them ultra vires or unreasonable.

Accordingly, even if CSNA had standing, its legal challenge would fail on the merits.

4. Detailed Analysis

4.1 Standing: representative bodies and the limits of flexibility

4.1.1 The competing positions

CSNA advanced two principal standing arguments:

Representative standing: CSNA claimed it could sue “in a representative capacity” on behalf of its retailer members who will be required to pay the licence fees.
Indirect impact: For the first time at the hearing, CSNA argued that it is itself affected because the Regulations may cause some members to close or to cease selling tobacco, thereby reducing CSNA’s membership and income.

It relied on authorities emphasising flexibility in locus standi, including:

Cahill v Sutton [1980] IR 269;
Irish Penal Reform Trust v Governor of Mountjoy Prison [2005] IEHC 305;
Rafferty & Ors v Bus Éireann [1997] 2 IR 424;
Digital Rights Ireland v Minister for Communications [2010] 3 IR 251; and
Friends of the Irish Environment v Government of Ireland [2021] 3 IR 1.

CSNA also suggested, citing Lancefort Ltd v An Bord Pleanála [1999] 2 IR 270, that because the respondents did not oppose leave they should not be able to contest standing at the substantive hearing.

The respondents countered that:

Cahill remains the foundational authority: a plaintiff must generally be directly affected by the provision or decision challenged.
Construction Industry Federation v Dublin City Council [2005] 2 IR 496 is directly analogous and determinative – a trade federation may not challenge a measure which affects only its members where those members could themselves sue.
Exceptional cases like SPUC v Coogan [1989] IR 734 (rights of the unborn) and Irish Penal Reform Trust (prisoners) are clearly distinguishable.

4.1.2 Timing of standing objections: Lancefort considered

Mulcahy J rejects the argument that standing can only be challenged at leave stage in an on-notice judicial review:

Lancefort is a decision about good practice, suggesting that where possible standing should be dealt with at the leave stage in planning JR cases.
The Supreme Court in Lancefort was not deciding that a failure to raise standing at leave stage precludes raising it at the substantive hearing.
Here, the hypothetical nature of CSNA’s factual case only truly emerged during the cross‑examination of its expert, which itself underscores why a later challenge to standing was appropriate.

4.1.3 Application of Cahill and CIF

Drawing heavily on Cahill v Sutton and CIF v Dublin City Council, the judge makes several key points:

Direct impact required: CSNA is not “directly affected” by the Regulations. Its members, not CSNA, must pay the licence fees; this fails the primary Cahill test.
No general actio popularis: Irish law remains hostile to ius tertii – one party asserting another’s rights – save in exceptional circumstances. The Supreme Court has repeatedly emphasised this in recent cases (e.g. Friends of the Irish Environment, Mohan v Ireland).
CIF as controlling authority: In CIF, the Supreme Court refused standing to a construction industry federation challenging a development contribution scheme:
- the measure affected its members, not the federation itself;
- a challenge by the federation would be hypothetical, insufficiently tied to a specific factual application; and
- there was no evidence that affected members were unable or unwilling to bring proceedings in their own right.
Mulcahy J finds CSNA’s position “indistinguishable” in substance. There is no greater justification here for allowing a representative body to sue than there was in CIF.
Exceptions not engaged:
- In SPUC v Coogan, the rights at stake were those of the unborn, who could not litigate themselves.
- In Irish Penal Reform Trust, prisoners’ capacity to bring test cases was considered practically limited.
By contrast, CSNA’s members are ordinary commercial actors, some of them large and well-resourced. No evidence suggested any obstacle to an individual retailer bringing proceedings.

4.1.4 The representative argument and Rafferty distinguished

CSNA’s reliance on Rafferty v Bus Éireann, where the National Bus and Rail Union was allowed bring an action in a representative capacity, is rejected:

In Rafferty, there were individual plaintiffs (drivers) who were directly affected; the union’s role was effectively additive.
The High Court’s comments there did not consider or apply the Cahill principles; CIF is the subsequent, controlling Supreme Court authority on trade associations.
In the present case, there are no directly affected individual plaintiffs joined alongside CSNA.

4.1.5 Speculative indirect impact

The judge is sceptical of the argument that CSNA is indirectly affected because some members might close as a result of the fees:

Professor Foley’s evidence on closures was based on limited data and multiple hypotheticals; even on his case, the fees alone would not be “transformative”.
Any causal link from the licence fees to future closure of shops, and then from closure to loss of CSNA membership, is highly attenuated.
Professor Foley also accepted that while some members might be “losers”, others might be “winners” (larger retailers who can absorb the cost and gain market share). CSNA thus does not even represent a unified interest regarding the impact of the Regulations.

This speculative and internally inconsistent impact falls far short of establishing that CSNA is itself “affected” in any meaningful legal sense.

4.1.6 Consequences for the different grounds

These standing conclusions have important procedural consequences:

Ground (vi), focusing on disproportionate economic impact on small retailers and shop closures, is described as an invitation to engage in analysis of a “hypothetical, and poorly defined, scenario” – something the court will not do absent exceptional circumstances.
Even for the purely legal grounds (i)–(v), which do not require factual findings about particular retailers, CSNA still lacks standing because it is not directly affected by the Regulations.

Notwithstanding this, the judge considers the legal grounds on their merits in case he is wrong on standing and because the parties fully argued them.

4.2 Proper form of proceedings: JR vs plenary

The respondents invited the court to dismiss the case because a direct challenge to secondary legislation should only be brought by plenary proceedings, not judicial review.

The court refers to Hogan, Morgan and Daly, Administrative Law in Ireland (5th ed., 2019), suggesting that the “normal rule” is that the validity of a statutory instrument should be challenged directly in High Court plenary proceedings, whereas judicial review may address the validity of such an instrument only collaterally in the course of challenging an administrative decision.

Mulcahy J then considers the Supreme Court’s subsequent decision in G v Ireland [2025] IESC 49, where O’Donnell CJ held (building on Donnelly v Minister for Social Protection [2023] 2 IR 415) that:

challenges directly to the validity of primary legislation should be brought by plenary proceedings, not judicial review; and
where a constitutional challenge arises collaterally in a judicial review of an administrative decision, the courts may manage the case (for example, by directing a plenary hearing) depending on the factual complexity.

Although G v Ireland deals with primary legislation and constitutional challenges, the judge draws the more general lesson that fact‑sensitive, impact‑driven arguments are likely to be more suitable for plenary procedure.

In this case:

The economic impact arguments (now effectively off the table because of standing) would, if advanced by a directly affected retailer, more naturally lend themselves to a plenary trial with oral evidence.
The residual live issues (interpretation of s.18, lawfulness of the Minister’s purpose, rationality in a public law sense) are pure questions of law well suited to judicial review.

The judge therefore declines to dismiss the proceedings on the basis of improper form. This part of the judgment confirms that while plenary proceedings are generally preferred for constitutional and heavily fact-bound challenges, there is no rigid procedural bar to raising questions about the validity of a statutory instrument via judicial review.

4.3 Scope of the Minister’s fee-setting power under s.18

4.3.1 Text of s.18

The central question is whether, as CSNA contended, the Minister’s power under s.18 of the 2023 Act is implicitly limited to setting fees which merely cover the cost of administering and enforcing the licensing regime.

Section 18 reads:

“The Minister may prescribe a fee where an application is made for— (a) a licence under section 12, (b) the renewal of a licence under section 15, or (c) a copy of a licence under section 17, and such fee shall be recoverable by the Executive as a simple contract debt …”.

There is no express language tying the amount of the fee to the cost of administering the licensing system.

4.3.2 Public health purpose and long title

The judge applies the interpretive approach affirmed in Heather Hill Management Company CLG v An Bord Pleanála [2024] 2 IR 222 and DPP v Brown [2019] 2 IR 1:

start with the text of the provision;
consider the Act as a whole, including its long title and evident purpose; and
where appropriate, have regard to legislative history and prior enactments.

The long title and structure of the 2023 Act establish that it is a Public Health Act creating a system for regulating and restricting the sale of tobacco and nicotine inhaling products. The licensing regime is thus:

“a public health measure”.

The judge notes that it is “inconceivable” that the Oireachtas, legislating for public health in relation to a recognised harmful product, did not contemplate that the exercise of powers under the Act (including s.18) would be deployed to promote public health, for example by discouraging the availability and use of tobacco.

4.3.3 Legislative history: the 2002 Act

The comparison between s.18 of the 2023 Act and its predecessor, s.37(2) of the 2002 Act, is crucial. Section 37(2) of the 2002 Act provided that the registration fee could be charged:

“for the purpose of defraying any expense incurred in establishing or maintaining the register”.

This was an express statutory limitation: the Minister’s fee-setting power there was confined to cost recovery. By contrast, that express limitation is absent in s.18 of the 2023 Act.

The judge does not go so far as to say that the omission conclusively proves that no limitation exists. However, he finds that the existence of such express language in the 2002 Act strongly undermines CSNA’s claim that a similar limitation must now be implied into s.18:

if the Oireachtas had intended to restrict the 2023 fee-setting power to cost recovery, it could very easily have replicated the earlier wording;
instead, it chose broad, unqualified language (“may prescribe a fee”), suggesting a wider regulatory discretion.

4.3.4 Conclusion on implied limitation

Mulcahy J rejects the argument that the Minister is legally obliged to set licence fees solely by reference to the administrative cost of the licensing regime. Instead:

the only constraint on s.18 is that the Minister must exercise the discretion in accordance with the objects and context of the Act (East Donegal Co-Operative Livestock Mart Ltd v Attorney General);
given the public health purpose and the legislative history, it is consistent with s.18 for the Minister to set fees at levels that both:
- regulate entry into the market and the conditions of sale; and
- seek, at least indirectly, to reduce the availability and use of tobacco products.

Thus, the first pillar of CSNA’s challenge – that the Regulations are invalid because they were not based solely on cost recovery – fails.

4.4 Alleged unlawful purpose: disincentivising tobacco sales

4.4.1 CSNA’s characterisation of the Minister’s purpose

CSNA argued that the Minister acted for an unlawful or ulterior purpose in setting the fees. Its submissions shifted slightly in emphasis:

In the pleadings, CSNA alleged that the Minister intended to impose a tax or excise duty in disguise on retailers to disincentivise consumption of tobacco and nicotine inhaling products.
In written submissions, CSNA went further, arguing that the “dominant purpose” was to set fees “at such a high level that it resulted in a reduction in the density of retail outlets”, in other words, “to close retail outlets”.

The core contention was that these purposes were not authorised by s.18 and therefore rendered the Regulations ultra vires.

4.4.2 Evidence of the Minister’s purpose: the briefing note

The only direct evidence of the Minister’s reasoning before making the 2024 Regulations was a Departmental briefing note prepared by Principal Officer Claire Gordon and colleagues, dated 9 December 2024. This note:

set out the proposed fee levels;
surveyed international comparators (various Australian states, Ottawa, Oregon, Finland);
compared the proposed tobacco licence fee to Ireland’s alcohol off-licence fees (€500 per category up to €1,500);
reported evidence that increasing licence fees in one Australian state led to a reduction in the number of venues selling tobacco products; and
highlighted research showing that the density of retail outlets is associated with youth smoking and relapse among ex-smokers.

The rationale section concluded that:

“The proposed rates are set at the high end of comparable fees in other jurisdictions. This is because the policy objective in relation to tobacco products is to eliminate their use… As the evidence [shows] that the density of retail outlets contributes to usage of tobacco products and that a licence fee can act to reduce density, it is reasonable that the Minister should not set a fee that is at the lower end of the scale… While the fees could be set far higher on health harm grounds, it is reasonable to take into account that this is the first time that retailers will have to pay an annual fee per outlet and it may therefore be more proportionate to begin with a lower fee and increase it in later years if desired.”

Thus, the briefing note explicitly links:

the health harms of tobacco;
a policy objective of reducing or eliminating tobacco use; and
the use of licence fees to potentially reduce the density of tobacco outlets.

4.4.3 No evidence of intention to “close retail outlets”

Mulcahy J finds no evidence whatsoever to support CSNA’s more extreme contention that the Minister’s dominant purpose was to close retail outlets:

The Australian evidence cited in the briefing note concerned premises ceasing to sell tobacco, not closing entirely.
The note speaks of reducing the number of outlets selling tobacco, not reducing the number of outlets per se.
There is “a world of difference” between discouraging retailers from stocking tobacco and intending that retailers go out of business.

The allegation that the dominant purpose was to “close” outlets is therefore categorically rejected as unsupported by the evidence.

4.4.4 Is discouraging tobacco sales an unlawful purpose?

The more realistic question is whether it was lawful for the Minister to set fees with the awareness and intention that they might disincentivise some retailers from selling tobacco. CSNA said no, arguing that the only legitimate purpose was cost recovery.

The judge applies the principle from Cassidy v Minister for Industry and Commerce [1978] IR 297, which, drawing on Diplock LJ’s formulation in Mixnam's Properties Ltd v Chertsey UDC [1964] 1 QB 214, holds that:

subordinate legislation must be exercised within the limitations of the enabling power, as expressed or necessarily implied; and
unreasonableness in this context means such manifest arbitrariness, injustice or partiality that a court would say “Parliament never intended to give authority to make such rules”.

Cassidy also recognises that where subordinate legislation pursues a combination of purposes, it is the dominant purpose that matters. If that is within the legislative power, incidental subsidiary purposes will not generally invalidate the measure.

Applying these principles, the judge concludes:

The dominant purpose revealed by the briefing note is to set a licence fee that:
- reflects the harmfulness of tobacco; and
- is broadly consistent with the level of fees charged for a comparable harmful product (alcohol).
The possibility that such a fee might discourage some retailers from selling tobacco is an accepted and legitimate public health objective, entirely consonant with the 2023 Act’s purpose.
Even if discouraging sales (and thus, indirectly, use) of tobacco were treated as the dominant purpose, it would still be a lawful purpose under a public health statute regulating a harmful product.

The court explicitly rejects the suggestion that there is anything improper about using licensing fees as a behavioural regulatory tool in a public health context, so long as the purpose remains tied to the objectives of the Act.

4.4.5 “Disguised tax” argument

CSNA repeatedly described the fees as an “excise duty” or “equivalent of an additional tax or duty” on tobacco products. The court finds this characterisation misconceived:

A licence fee is a charge for permission to engage in a regulated activity (here, selling tobacco products), payable by the retailer.
An excise duty or tax on tobacco, by contrast, is a charge on the product itself and is ultimately borne by consumers through higher prices.
On CSNA’s own case, the licence fee cannot be passed on to consumers and so cannot operate as a excise-like surcharge on retail price.
In any event, the introduction of a licensing fee is mandated by the 2023 Act itself. In the absence of any challenge to the parent Act, the court cannot treat the statutory requirement to pay a licence fee as if it were an unlawful tax.

Accordingly, the argument that the Regulations are invalidated by constituting a “tax” or “excise” is rejected in principle.

4.5 Rationality and evidence: were the fees “plucked from the air”?

4.5.1 The irrationality standard

CSNA claimed that the Minister’s decision to set the fees at €1,000/€800/€1,800 was arbitrary and without evidential or methodological basis. The applicable standard is the high threshold articulated in Cassidy and Mixnam’s Properties:

“…such manifest arbitrariness, injustice or partiality that a court would say: ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.’”

This is a robust form of Wednesbury unreasonableness adapted to subordinate legislation: the court does not ask whether it would have set the same fees, but whether the decision is so devoid of rational foundation that it cannot stand.

4.5.2 Briefing document as evidence

Initially, Mr Jennings (CSNA’s CEO) averred that it was hard to avoid the inference that the figures were “simply plucked out of the air”. Once the respondents disclosed the briefing note, this contention became untenable.

The briefing document:

proposed specific fee levels;
surveyed comparators in several overseas jurisdictions that operate tobacco licensing;
highlighted Ireland’s alcohol licensing fees as a domestic benchmark;
explained the logic of setting fees at the “high end” of international comparators, given the policy objective to reduce tobacco use; and
justified not setting even higher fees by reference to proportionality and transition (this being the first time retailers would pay an annual fee per outlet).

Mulcahy J views this as a reasoned policy document, not an arbitrary or capricious selection of rounded amounts. In light of this, the claim that the decision was taken without evidence cannot be sustained.

4.5.3 Round numbers and precision

CSNA’s suspicion appears to have been influenced by the fact that the fees were set at round figures (e.g. €1,000). The judge notes that once one discards the mistaken assumption that fees must be calibrated to exact cost recovery, there is nothing inherently suspect about round numbers:

Ministers are not required to conduct a quasi-actuarial costing exercise or to justify why the fee is €1,000 rather than €900 or €1,100.
Lawful regulatory choices may combine policy judgment with broad‑brush comparisons rather than precise mathematical formulae.

On this basis, the irrationality challenge fails.

4.6 Alleged irrationality because the Regulations may be ineffective

4.6.1 The Doyle analogy

CSNA relied on Doyle v An Taoiseach [1986] ILRM 693, where an excise duty on slaughtering bovine animals was struck down:

The duty was designed on the basis that it would be borne by producers.
In practice, legal and market constraints made it impossible to pass the levy back to producers; it fell instead on exporters and butchers.
The High Court described the levy as “unreasonable and unworkable”; the Supreme Court held that it operated outside the intended scope of the statutory delegation.

CSNA attempted an analogy: if the Minister’s purpose was to reduce consumption by effectively increasing retail prices via a quasi‑tax, but retailers cannot pass the cost on to consumers (because of price controls), then the scheme is misguided and thus irrational or ultra vires.

4.6.2 Distinguishing Doyle

Mulcahy J finds Doyle plainly distinguishable:

There is no evidence that the Minister misunderstood how the licence fees would operate in the market or believed that they would necessarily be passed on to consumers.
There is no basis to imply into s.18 an intention that the fee must be borne by consumers rather than retailers.
The 2023 Act already operates against a background where tobacco products are subject to substantial direct excise duties – the obvious and direct mechanism for fiscal disincentivisation of consumption.

Accordingly, the attempted analogy with Doyle is rejected.

4.6.3 Effectiveness vs legality

The respondents’ own expert, Mr Massey, expressed doubts as to whether the Regulations would significantly reduce tobacco use, positing that manufacturers might absorb the licence fees, nullifying their disincentivising effect on retailers. Professor Foley disagreed.

The judge emphasises that such predictive economic debates do not determine the legality of the Regulations:

The Regulations clearly achieve their direct legal purpose of imposing a licence fee as provided for in s.18.
Whether they succeed in fully achieving the broader policy objective of reducing tobacco consumption does not affect their validity.
The Oireachtas has built in an explicit mechanism in s.10 of the 2023 Act requiring the Minister to review the operation of the Act 12 months after its passing, including (implicitly) the effectiveness of the licensing and fee regime.

Thus, even if the fees ultimately prove less effective than hoped, that would be a matter for policy adjustment, not a ground for judicial invalidation.

5. Complex Concepts Explained

5.1 Locus standi (standing)

Locus standi refers to the legal right of a person or entity to bring a case before the court. In Irish constitutional and administrative law:

A claimant must generally be personally affected by the law or decision challenged (Cahill v Sutton).
The courts are wary of “actio popularis” – anyone challenging any law they dislike – as this risks turning the courts into a forum for abstract policy disputes.
There are exceptional situations where a person or NGO may be allowed to sue on behalf of those who cannot effectively litigate themselves (e.g. unborn children, prisoners, sometimes environmental cases), but these are tightly controlled.

In this case, CSNA’s difficulty is that:

It does not itself have to pay the licence fees; and
There is no barrier preventing individual retailers – including large, well-resourced members – from bringing proceedings if they wish.

5.2 Ultra vires

Ultra vires literally means “beyond the powers”. Subordinate legislation (such as a statutory instrument) is ultra vires if:

it is made for a purpose not authorised by the enabling Act; or
it exceeds the scope (express or implied) of the power conferred; or
it is so unreasonable or arbitrary that one can say Parliament “never intended to give authority” to make such a measure (Mixnam’s as adopted in Cassidy).

Here, CSNA claimed:

the Minister’s purpose (disincentivising sales / closing outlets) was not authorised; and
the manner of setting the fee was irrational and arbitrary.

The court rejected both, finding that the purpose was squarely within the public health objectives of the Act and that there was a proper evidential basis for the fee levels.

5.3 Wednesbury-type unreasonableness / irrationality

In public law, a decision may be set aside for “unreasonableness” or “irrationality” only where it is so unreasonable that no reasonable decision-maker could have made it. For subordinate legislation, the threshold is even higher:

the measure must demonstrate manifest arbitrariness, injustice or partiality (Mixnam’s);
a mere disagreement over policy or proportionality will not suffice.

Because the Minister had:

clear statutory authority to prescribe a fee;
a structured departmental briefing drawing on comparators and health evidence;
a rational explanation for the fee levels selected; and
an express review mechanism built into the Act;

the court was far from concluding that the Regulations crossed the ultra vires threshold.

5.4 Plenary proceedings vs judicial review

In Ireland, challenges in public law can be brought by:

Judicial review (JR): a specialised, usually affidavit-based procedure, for challenging administrative decisions (and sometimes the application of legislation). It is faster but generally less suited to heavily contested factual disputes.
Plenary proceedings: ordinary civil proceedings begun by plenary summons, designed for trials with full oral evidence, cross-examination, and detailed factual findings. The Supreme Court has said that direct challenges to the constitutionality of primary legislation should generally be brought this way (G v Ireland, Donnelly).

Here, the court signals that:

fact-heavy economic impact challenges to legislation are better suited to plenary hearings; but
purely legal questions about the validity of secondary legislation can still be addressed in JR.

5.5 Licence fee vs tax/excise duty

A licence fee is a payment made in exchange for permission to undertake a regulated activity (e.g. selling alcohol or tobacco). A tax or excise duty is a general charge on income, transactions or products, usually intended to raise public revenue and/or influence consumer behaviour.

Key differences include:

Who pays: the licence fee is paid by the licensee; an excise duty is typically factored into the price paid by consumers.
Legal basis: licence fees are authorised by provisions like s.18; excise duties are generally authorised under distinct fiscal legislation.

While both can have behavioural effects, not every fee calibrated to influence behaviour is a tax; the classification depends on legal structure and incidence, not merely on policy motivation.

6. Impact and Significance

6.1 For representative and trade bodies

The judgment powerfully reaffirms the restrictive approach to representative standing in Irish public law, especially for trade and industry bodies:

CIF remains the leading authority: representative bodies cannot generally challenge regulatory measures that affect only their members where those members could sue for themselves.
CSNA’s attempt to frame the case as one about its own interests (via speculative loss of members) failed. Courts will demand clear and concrete evidence of direct impact, not conjecture about hypothetical future consequences.
For future regulatory challenges (e.g. concerning licensing, charges, sectoral levies), it will usually be necessary to join at least one directly affected entity as plaintiff. Trade associations acting alone are at serious risk of being found to lack standing.

6.2 For public health regulation and licensing fees

Substantively, the judgment is an important endorsement of the capacity of Ministers to use licence fees as public health instruments:

The court recognises that the 2023 Act is a public health measure and treats the power to set fees in s.18 as part of a wider regulatory toolkit to reduce tobacco harm.
The explicit contrast with the 2002 Act’s cost-defraying provision confirms that the Oireachtas can choose to untether fees from strict cost recovery where it wishes to do so.
Where the statutory context is public health and the product is known to be harmful, courts are likely to accept that fee levels may legitimately reflect:
- the harmfulness of the product;
- comparisons with other regulated products (e.g. alcohol); and
- international best practice and empirical evidence on outlet density and consumption.

This has implications beyond tobacco. Regulators and Ministers may see in this judgment support for the idea that:

licence fees for other harmful or risky activities (e.g. alcohol, gambling, certain food products) can be set with behavioural objectives in mind, not simply to recoup administrative costs, provided the enabling statute permits it; and
courts will be slow to interfere where the fees are underpinned by a coherent policy, reference to comparators, and a clear link to the statute’s aims.

6.3 For irrationality challenges and economic evidence

The case also demonstrates the limited role of economic expert evidence in many public law challenges:

Both sides called economists who produced detailed reports and a joint paper, and were cross‑examined.
Ultimately, the judge found their evidence “of only marginal relevance” to the questions the court had to determine, especially once standing had failed and the economic‑impact grounds were set aside.
The core of the case reduced to issues of statutory interpretation, lawfulness of purpose, and rationality at a high level, not to fine-grained predictive assessments about retailer behaviour.

This is a reminder that:

Courts are concerned with legality, not with substituting their own assessment of policy effectiveness or economic optimisation for that of the legislature or executive.
Even where expert evidence suggests that a measure may not be especially effective, this rarely suffices to show that it is irrational in the legal sense.

6.4 For procedure: choice of JR or plenary

Finally, the judgment sits coherently with the trend, exemplified by G v Ireland and Donnelly, towards preferring plenary proceedings where:

the challenge is to the validity of primary legislation; and
the issues are fact‑sensitive and require exploration of individual impacts through oral evidence.

Although this case involved secondary legislation and was resolved through judicial review, the court’s reflections indicate that future litigants raising nuanced constitutional or factual challenges to legislative schemes should expect:

to proceed by plenary summons; or
to have their judicial review effectively converted into a plenary‑style hearing where the constitutional question is central and fact‑intensive.

7. Conclusion

CSNA Company Ltd v Minister for Health is a significant decision at the intersection of standing doctrine, public health regulation, and judicial review of secondary legislation.

On standing, it reaffirms that:

trade associations and representative bodies will ordinarily lack locus standi to challenge measures affecting their members alone, unless there is a clear obstacle to members suing themselves; and
speculative or indirect impacts (such as potential future loss of members) are insufficient to ground standing.

On the merits, the judgment confirms that:

where a public health statute grants a Minister broad power to prescribe licence fees, that power is not presumed to be confined to cost recovery, particularly where an earlier regime expressly had such a limitation and the new one does not;
it is lawful to calibrate fees at a level that is designed, at least in part, to discourage the sale of harmful products and to reduce outlet density, provided that remains consistent with the Act’s purpose; and
courts will be reluctant to find such regulations irrational where they are supported by a reasoned policy briefing, international and domestic comparators, and explicit linkage to the statute’s public health objectives.

For future public health and economic regulation, the case signals a substantial degree of judicial deference to legislative and ministerial choices regarding fee levels and behavioural objectives, so long as those choices fall within the scope of the enabling Act and are made on a rational, evidence‑informed basis.