Case C-380/03 (Tobacco Advertising II) 
Case C-380/03 Germany v Parliament and Council (Tobacco Advertising II) 
- Following the annulment of directive 98/43 which sought to ban tobacco advertising in Tobacco Advertising I , 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)?
- No, directive upheld
- 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  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 
- 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
Posted in EU Law Revision Notes.
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