Case C-380/03 (Tobacco Advertising II) [2006]

Case C-380/03 Germany v Parliament and Council (Tobacco Advertising II) [2006]

Following the annulment of directive 98/43 which sought to ban tobacco advertising in Tobacco Advertising I [2000], a replacement directive was proposed
The new directive (2003/33) sought to ban the advertising of tobacco products in a more defined way, applying only to press, printed media products, radio broadcasts and information society services

Could this second directive also be annulled on the basis of a lack of competence (so that the directive was ultra vires)?

There was a clear disparity between Member States’ national laws on tobacco advertising, to increase with increasing awareness of the negative health effects of using tobacco products
The directive, under the Art 114 test set out in Tobacco Advertising I [2000] did have at its object the improvement of inter-state trade, which narrower restrictions than the old directive and sensible exclusions
Public health may validly have been a decisive factor in the the directive’s enactment, given that Art 114’s requirements had been fulfilled
The directive’s approach is proportionate to its objective
The directive is very similar to the proposal made by the Court of Justice in Tobacco Advertising I [2000]

The directive still amounts to an effective ban on consumer advertising, and it seems illogical to suggest that a complete ban can help facilitate the free movement of services (of advertising)
The case fails to address cultural differences affective tobacco product attitudes between Member States