Case histories
Tobacco Advertising Directive
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1 General
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6 Case histories
  • Theory
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    The lengthy procedure of the Tobacco Advertising Directive started on 7 April 1989 with a proposal initiated by the European Commission. The proposal aimed to harmonise and regulate advertising for tobacco products in the press and on posters. It proposed that the Member States add warnings to tobacco advertisements similar to those already used on cigarette packets. Advertising was not to associate tobacco with fresh air, open space, or a successful life. Advertisements aimed at persons under 18 years old were banned. The Member States were allowed take stricter measures as long as this did not adversely affect the purpose of the directive.

    In a first reading on 14 March 1990, the European Parliament adopted a number of amendments to the proposal that aimed at a total ban on tobacco advertising. Parliament wanted to make it easier for Member States, under certain conditions, to adopt stricter measures. It also wanted rules for the right of a company to sell products other than tobacco under the same brand name. Parliament also wanted consumer organisations and anti-smoking organisations to be recognised as organisations with an essential interest in the taking of measures against tobacco products.

    On 19 April 1990, the Commission met the wish of Parliament by modifying the proposal. However, the Commission thought it was too early for a complete ban on tobacco advertisements. The proposal was amended to such an extent that it only applied to harmonisation of rules in countries that allow advertisement and that special attention would be paid to the protection of the young.

    The proposal was then discussed in a working group of the Council. However, no consensus was reached, neither in this working group, nor in COREPER. In December 1990, the Council therefore could not obtain a qualified majority for the Commission proposal. Various Member States failed to see how this directive would remove the obstacles for an internal market. Therefore, the Commission was invited to submit a new proposal.

    On 17 May 1991, the Commission forwarded this new proposal to the Council. Since it was an entirely new proposal, the whole procedure had to start all over again.

    The new Commission proposal banned tobacco advertisements outside sales outlets. Selling products other than tobacco under a tobacco brand was banned, as was the use of another well-known brand name for tobacco products. Under this proposal it was prohibited, for example, to sell coats under the name of Marlboro or to promote cigarettes under the name of Pepsi.

    It was only allowed to advertise tobacco products in shops; the advertisements may not be visible from outside. Organisations were established to monitor compliance with the directive.

    The new directive was to enter into effect on 1 January 1993.

    On 11 February 1992, Parliament adopted this new proposal in the first reading. It made two amendments. The definitions of "sales outlet" and "advertisement" were modified. Parliament also wanted the effects of the Tobacco Directive to be evaluated every two years. In its modified proposal of 30 April 1992, the Commission only included the amendment to allow, under certain conditions, that companies sell other products under a tobacco brand name.

    On 23 September 1992, the Economic and Social Committee advised postponing the directive until 1 January 1994. Until that time, the tobacco industry was to have the opportunity to establish self-regulation. This meant that tobacco advertising was not to target youth and was not to be linked to sports activities or appeal to adulthood. After an evaluation of further developments, the Commission could take stricter measures if required.

    The Council failed to reach a qualified majority to adopt the Commission proposal. Therefore, the President of the Council (Ireland) made a proposal on 30 November 1995 as a basis for further negotiations within the Council in order for the next Presidency to reach an agreement. The proposal said that article 95 EC was to remain the legal basis for the decision, supplemented with articles 47 and 55 EC. Cross-border radio commercials for tobacco were to be prohibited, as was advertising in the written press or other media distributed in several Member States.

    The proposal also suggested investigating how the objectives could be achieved by voluntary agreements. The Member States should also be granted the possibility of allowing measures that were stricter than the directive, and indirect advertising could also gradually be abolished by the Member States, if only they effect a total prohibition in the end.

    The Council negotiated the proposal drafted by Ireland for a fairly long time and presented a common position on 12 February 1998. This common position was based on the proposal adapted by the Commission on 11 December 1997. In the common position, the Council agreed to introducing a total prohibition of tobacco advertising and sponsoring. The Council´s position did allow, under certain conditions, the use of tobacco brands for other products and services, if these brands had already been used for other purposes before the directive was published. The same went for other established brands of tobacco products. In addition, the common position made provision for advertising between the producer and the retailer, and advertising for tobacco products from third countries.

    The directive had to be implemented in the Member States within three years after publication. After that, the Member States could postpone its implementation for another two years as regards sponsoring and for one year as regards advertising in the written press. In exceptional cases, implementation could be further postponed, for example, in the case of existing sponsorship of certain world-wide events: such sponsorship would be allowed for another three years.

    On 1 October 2006 at the latest, all provisions of the directive must have been implemented, after which the consequences of the implementation must be evaluated by the Commission every two years.

    The responsible parliamentary committee assembled on 22 April 1998 to discuss the new directive. Special attention was paid to the legal basis of the decision, as Parliament´s Legal Affairs Committee had indicated a week earlier that article 95 EC would not be a sound legal basis for such a directive because this article is the basis for legislation concerning the operation of the internal market, whereas the new directive´s main aim was to protect public health. The proper basis for the tobacco directive, therefore, should not be article 95 EC but article 152 EC (public health).

    However, the Committee on the Environment, Public Health and Consumer Protection believed that the tobacco directive especially concerned the operation of the internal market and that section 3 of article 95 EC also offered the possibility of a high level of protection of public health. Therefore, this committee stuck to Art. 95 EC as a legal basis.

    On 13 May 1998, Parliament accepted the Council´s common position on a second reading without any amendments. The amendments proposed to change the legal basis were not accepted, nor was a proposal to reject the common position.

    The Council formally accepted the decision on 22 June 1998. It was decided that the directive would enter into force on 30 June 1998 and that it must be implemented by the Member States within three years.

    On 6 July 1998, the Presidents of the Council and of Parliament signed it. The decision was published in the Official Journal (OJ 1998, L 213/9).

    Germany contested the validity of the directive at the Court of Justice (case C-376/98, Germany against the European Parliament and Council), arguing that the directive had a wrong legal basis since the prohibition of tobacco advertising is predominantly related to public health. To support this point of view, the country argued that, in preparing the directive, public health had often been put forward as an important argument in the materialisation of the decision. The deliberations preceding the eventual directive also pointed out the importance of public health and especially the protection of the health of youngsters, who are an important target of tobacco advertising and promotion. Finally, all those in the institutions who were involved in the directive´s materialisation were also responsible for public health.

    Germany argued, therefore, that Art. 95 EC could not be the legal basis for the decision and that the legal basis should be Art. 152 EC. As the EC Treaty explicitly excludes the possibility of harmonisation legislation to protect public health (Art. 152 section 4 subsection c), Germany felt that the Community was not competent to draft such a directive. In his opinion of 15 June 2000, the Advocate-General did not concur with the argument that Art. 152 EC should have been used as the legal basis for the directive because Art. 152 could not be used to this end due to the exception in section 4.

    Therefore, he investigated whether Art. 95 offered sufficient legal basis for the tobacco directive. The legal basis would be insufficient if the measure had only an oblique effect on the internal market. Therefore, it was necessary to determine whether the differences in legislation among the Member States got in the way of practising the four freedoms and, subsequently, if the Community´s actions were geared towards removing these obstacles.

    The Advocate-General ascertained that there was indeed an obstacle, and he investigated the Community´s actions. In his view, the directive did not aim to remove obstacles for companies predominantly focusing on producing tobacco advertising or sponsoring, as the only effect of the directive was that they would no longer be allowed to do so. The prohibition does not hold out a single advantage to these service providers. A measure only aiming at, or at least having the effect of, shutting the door on an entire service sector cannot be considered a measure that promotes the operation of the internal market. The community legislator, therefore, had made a glaring mistake or had, at any rate, clearly overstepped his competence, according to the Advocate-General. Therefore, he held the directive invalid and pleaded for annulment.

    The European Court of Justice decided that the European legislation prohibiting tobacco advertising has been established on improper grounds. The EU used the argument that it was about a measure to protect the European population.

    Documentation

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