C-380/03 Germany v Parliament and Council [2006] (Tobacco Advertising II)
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In C-380/03 Germany v Parliament and Council [2006] ECR I-11573, also referred to as Tobacco Advertising II, the European Court of Justice (ECJ) addressed the challenge against a replacement directive, which followed the annulment of the original directive. The new directive focused more narrowly on advertising in the press and sporting events and was again contested by the German government. The court ruled in favour of the validity of the replacement directive. The judgment provides insights into the competence of the EU under Article 95 EC (now Article 114 TFEU) and the principle of proportionality.
The court acknowledged a background principle of a high level of protection of public health. It emphasised that the use of the words "measures for the approximation" in Article 95 EC conferred a discretion on the Community legislature to harmonise measures depending on the circumstances of the matter. This discretion could involve requiring member states to authorise products, subjecting authorisations to conditions, or prohibiting products. In this case, the court found the directive to be competent.
The court reasoned that the disparity in national rules on advertising in press products impeded the free movement of goods and services. National rules prohibiting advertising of tobacco products were more likely to obstruct access by products from other member states than access by domestic products. Additionally, these rules affected the ability to offer advertising services across borders, impacting the cross-border supply of services.
The judgment also considered the principle of proportionality, stating that a provision should be appropriate and no more than necessary to achieve its objective. The court allowed for broad discretion in sensitive areas involving complex political, economic, and social choices. In this context, the directive was deemed proportionate, given the obligation to ensure a high level of human health protection.
The court highlighted that the ban on press advertising did not include professional publications in the tobacco trade or publications intended for third countries. Exemptions for local or regional publications were not possible, as they would render the scope of the prohibition uncertain and impede the harmonisation of national law. The ban on advertising in radio and information society services was considered necessary to prevent circumvention of the prohibition on print media.
The case implies that the EU has the authority to enact comprehensive measures, including bans, to prevent disparities in national rules. The judgment emphasises the importance of harmonising laws to facilitate the free movement of goods and services while considering the principle of proportionality, especially in areas related to public health protection.
The court acknowledged a background principle of a high level of protection of public health. It emphasised that the use of the words "measures for the approximation" in Article 95 EC conferred a discretion on the Community legislature to harmonise measures depending on the circumstances of the matter. This discretion could involve requiring member states to authorise products, subjecting authorisations to conditions, or prohibiting products. In this case, the court found the directive to be competent.
The court reasoned that the disparity in national rules on advertising in press products impeded the free movement of goods and services. National rules prohibiting advertising of tobacco products were more likely to obstruct access by products from other member states than access by domestic products. Additionally, these rules affected the ability to offer advertising services across borders, impacting the cross-border supply of services.
The judgment also considered the principle of proportionality, stating that a provision should be appropriate and no more than necessary to achieve its objective. The court allowed for broad discretion in sensitive areas involving complex political, economic, and social choices. In this context, the directive was deemed proportionate, given the obligation to ensure a high level of human health protection.
The court highlighted that the ban on press advertising did not include professional publications in the tobacco trade or publications intended for third countries. Exemptions for local or regional publications were not possible, as they would render the scope of the prohibition uncertain and impede the harmonisation of national law. The ban on advertising in radio and information society services was considered necessary to prevent circumvention of the prohibition on print media.
The case implies that the EU has the authority to enact comprehensive measures, including bans, to prevent disparities in national rules. The judgment emphasises the importance of harmonising laws to facilitate the free movement of goods and services while considering the principle of proportionality, especially in areas related to public health protection.
