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Case C-376/98 (Tobacco Advertising I) [2000]

Case C-376/98 Germany v Parliament and Council (Tobacco Advertising I) [2000]


  • A directive (98/43) effectively banning all (non-trade) advertising on tobacco products was enacted on the basis of [Art 114 TFEU]
  • There were differences between Member States’ approaches to tobacco product marketing – some Member States favoured complete bans, whereas others took a more liberal approach
  • Germany objected to this directive, claiming that the measure went beyond the scope of Art 114, was ultra vires and so should therefore be annulled


  • Was the directive ultra vires?


  • Yes, the directive was annulled


  • Although Art 168(5) TFEU prevents the harmonisation of laws designed to protect public health, an Art 114 measure may still validly impact on the protection of public health
  • Art 114 TFEU does not provide a general power to regulate the internal market; measures must genuinely have their objective set on improving market conditions and must remove existing or future obstacles to inter-state trade
  • As long as the above two requirements are met, even if public health is a decisive factor in the enactment of the measure, the measure will not be ultra vires
  • Directive 98/43’s prohibition of advertising was so exhaustive that it could not be justified by the need to eliminate obstacles to inter-state trade/the freedom to provide services, especially in areas where inter-state trade was negligible, such as on ashtrays, parasols and in cinemas
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