The European Commission is to press ahead with legislation to phase out tobacco advertising and sponsorship inside the union despite losing a landmark case in the European Court of Justice in Luxembourg last week.
The judges ruled that parts of the legislation, agreed by EU governments and the European parliament two years ago and due to take effect from next July, went beyond the powers the union had been given by its treaties. Rather than strike out only the offending measures, the court annulled the entire directive.
The judgment was an initial victory for the German government and the four British tobacco companies that had brought the legal challenge. But the response from supporters of the ban was swift.
The government for England and Wales and the Scottish Executive both announced they would be bringing forward national legislation to achieve the same goals. Public health minister Yvette Cooper said: “It will not deflect us from implementing our manifesto commitment to ban tobacco advertising.”
Although initially disappointed by the Luxembourg judgment, the commission was overjoyed that the court recognised that public health protection is a constituent part of other EU policies.
In the clearest statement yet on the issue, the judges ruled: “A directive prohibiting certain forms of advertising and sponsorship of tobacco products could have been adopted” on the basis of the treaty article (100a)—the one used by the commission.
They stipulated, however, that the ban had to be directed at items that were traded across frontiers—magazines, newspapers, periodicals, and international sporting and cultural events—and so ensured harmonised rules to guarantee the free flow of the internal market.
The advertising clampdown could not be introduced by the EU on “stationary” items (such as posters, parasols, and ashtrays) or in hotels, cafes, restaurants, and cinemas. The commission therefore intends to table redrafted legislation early next year, removing the offending articles.
Although this will have to go through the whole decision making procedure and is unlikely to be law before 2004, many of its provisions may be introduced earlier through national legislation. For example, four countries—Finland, France, Portugal, and Sweden—already ban press advertising. Ten have phased out tobacco advertisements in cinemas, and posters are not allowed in five member states. Ironically, this mosaic of different national rules, which the EU measure tried to avoid, could make the tobacco companies' advertising strategies even harder to implement.
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Yvette Cooper: “EU ruling will not deflect us from our manifesto”