Luxembourg, 05/10/2000 (Agence Europe) - The Court of Justice has annulled the Council and European Parliament's directive that had introduced a total ban on tobacco advertising, as well as the sponsoring of events (sports and others) on the part of producers of tobacco and other tobacco products. The Court considered that such a total ban could not be decided upon - as the Council and Parliament had done - under the provisions of the Treaty concerning the internal market, the right of establishment or the free provision of services, and that nor was it the correct legal path to eliminate distortions to competition caused by differences in national legislation on the matter. The European Commission has, however, welcomed this ruling considering the fact that it recognises the possibility of taking measures aimed at the protection of human health based on Treaty provisions relating to the setting up of the internal market, as long as certain conditions are met. It is therefore considering proposing an amended directive with the same general goals (possibly with fewer restrictions) than the annulled directive.
The directive was adopted on 6 July 1998. The German Government, which had voted against (Spain abstained), had lodged an appeal for an annulment. The High Court of Justice of the United Kingdom asked the European Court for a preliminary ruling, in the framework of case brought before he courts in the United Kingdom by a certain number of producers of manufactured tobacco products, among which, for example, Imperial Tobacco. Germany and the tobacco manufacturers pointed out that the directive had to be situated within the context of actions aimed at protecting public health and could in no way constitute an act tending to achieve the internal market.
The Court of Justice did not dispute the fact that an "internal market" decision could have goals linked to human health: these goals may even be defining in the choice of measures taken; but it is essential that these measures should effectively have as goal to improve the workings of the internal market. Yet, the Court notes that the general ban on advertising in no way contributes to facilitating trade in the products concerned. In addition, regarding competition, the effects of the directive are not substantial; on the contrary, the ban on advertising may render access for operators to the markets of other Member States even more difficult. Thus, in no way does the directive contribute to the free movement of goods or the free provision of services.
However, and this is why the Commission is satisfied, the Treaty's provisions relating to the single market may allow for the adoption of partial measures banning certain forms of advertising and sponsoring in favour of tobacco products. For example, the fact that sponsoring is allowed in certain Member States and banned in others leads to the relocation of certain sporting events, which leads to distortions to competition between companies managing such events. But the Court cannot itself amend the directive to render it legal; it being up to the Community legislature to make the amendments, the Court can but annul the directive as a whole.
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against harmful ingredients in cigarettes is not affected
For David Byrne, European Commissioner for Health Protection and Consumers, this Court Ruling is to be welcomed in that it expressly recognises the powers of the Commission to introduce, through legislative means, certain restrictions to the promotion of tobacco, to protect human health as an integral part of Community policies. His spokesperson declared that the Commissioner was determined - using al the margin of manoeuvre offered by this ruling - to take new measures to attack the pernicious effects of tobacco addiction, especially among children and young people who are the favoured targets of tobacco manufacturers and attractive advertisements specifically designed for them. David Byrne's aim is to prevent new smokers - of which it has been proven that most smoke their first cigarette before the age of eighteen - do not come to swell the ranks of the 500,000 European citizens who succumb to the effects of this dependence every year.
Recalling, in a press release, that a very large majority of Member States had backed the directive that the Court annulled on Thursday, the Commission says he is counting on Member States and the European Parliament to back the new initiative aimed at reducing the death rate attributable to tobacco addiction, and welcomed the intention, announced by the International Automobile Federation, of banning tobacco advertising from the end of the 2006 season.
"This shows clearly the change in attitude to tobacco sponsorship that is now taking place. I call on other sporting organisations to renounce tobacco sponsorship".
Subject to a detailed examination of the Court's ruling by the Commission, David Byrne said he "did not expect the ruling to affect the proposed legislation" on the presentation and the sales of tobacco products, currently on the table of the Parliament and Council. The aims pursued by the directive for harmonisation (reducing the authorised content of tar and nicotine, introducing a maximum carbon monoxide level and imposing labelling provisions to warn against the dangers linked to tobacco smoking) are, in his view, an essential element in the fight against tobacco addiction, based on better citizen information.