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

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

Facts

  • 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

Issue

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

Decision

  • No, directive upheld

Reasoning

  • 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]

Opinion

  • 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
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