Advocate General opinion on the tobacco advertising case

On 13 June 2006, Advocate General Philippe Léger, recommended to the European Court of Justice to dismiss the action brought before it by Germany, which is seeking to partially annul the EC Directive 2003/33/EC that bans tobacco advertising in the print media, on radio and over the internet in Europe and outlaws advertising at international sports events (on Television, tobacco advertising has been outlawed since 1990 by the TV without Frontiers directive).

In September 2003 the German government asked the ECJ to review the validity of the Directive arguing that EU lawmakers have exceeded their powers under the internal market provisions of the EU Treaty (Article 95) and that the ban's main aim is to protect public health which the Treaty leaves to Member States to legislate.

Instead Mr Léger, arguing on the basis of internal market rules, said that different rules between member states on tobacco advertising are hindering the bloc's internal market.
Differences between national rules, most of which seek to limit or prohibit such advertising, inevitably have the effect of impeding not only the free movement of goods but also the freedom to provide services, he said.
"In effect, the provision of the EC Treaty aimed at the approximation of the provisions of the Member States which have as their object the establishment and functioning of the internal market is appropriate for putting an end to the divergent development of national rules in this field, which was contributing significantly to the fragmentation of the internal market," the advocate general concluded.
Although the Opinion of the Advocate General has no binding force chances are the Court of Justice will follow it.

On 14 June 2006, German Consumer Protection Minister, Horst Seehofer, announced that his government will give in to the growing pressure from the ECJ to ban tobacco advertising.

For further information:

• Directive 2003/33/ECof the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products
• European Court of Justice press release: Advocate General Philippe Léger proposes that the Court of Justice should dismiss the action brought by Germany against the tobacco advertising directive (13 June 2006) [FR]
• European Court of Justice: Opinion of Advocate General Léger in the case C-380/03 : Federal Republic of Germany v European Parliament and Council of the European Union (13 June 2006)
• Council and Parliament: Directive on tobacco advertising[FR][DE] (2003/33/EC of 26 May 2004)
• Commission (Memo) Questions and Answers on tobacco advertising (27 May 2005)