Keywords
Summary

Keywords

1. Public health - Approximation of laws - Legal basis

(EC Treaty, Art. 100a and 129 (now, after amendment, Art. 95 EC and 152 EC))

2. Approximation of laws - Measures intended to improve the functioning of the internal market - Protection of public health - Legal basis

(EC Treaty, Art. 57(2) and 100a (now, after amendment, Art. 47(2) EC and 95 EC) and Art. 66 (now Art. 55 EC))

3. Approximation of laws - Directive aimed at prohibiting the advertising and sponsoring of tobacco products - Legal basis - Article 100a of the Treaty (now, after amendment, Article 95 EC) - Limits - Measures not justified by the need to eliminate obstacles to fundamental freedoms - Annulment of the directive

(EC Treaty, Art. 57(2) and 100a (now, after amendment, Art. 47(2) EC and 95 EC) and Art. 88 (now Art. 55 EC); Directive of the European Parliament and the Council 98/43)

Summary

1. Although the first indent of Article 129(4) of the Treaty (now, after amendment, the first indent of Article 152(4) EC) excludes any harmonisation of laws and regulations of the Member States designed to protect and improve human health, that provision does not mean that harmonising measures adopted on the basis of other provisions of the Treaty cannot have any impact on the protection of human health. The third paragraph of Article 129(1) provides that health requirements are to form a constituent part of the Community's other policies. Other articles of the Treaty may not, however, be used as a legal basis in order to circumvent the express exclusion of harmonisation laid down in Article 129(4) of the Treaty.

( see paras 77-79 )

2. The measures referred to in Article 100a(1) of the Treaty (now, after amendment, Article 95(1) EC) are intended to improve the conditions for the establishment and functioning of the internal market. To construe that article as meaning that it vests in the Community legislature a general power to regulate the internal market would not only be contrary to the express wording of Articles 3(c) and 7a of the Treaty (now, after amendment, Articles 3(1)(c) EC and 14 EC) but would also be incompatible with the principle embodied in Article 3b of the EC Treaty (now Article 5 EC) that the powers of the Community are limited to those specifically conferred on it.

Moreover, a measure adopted on the basis of Article 100a of the Treaty must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market. Although recourse to Article 100a as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them.

Those considerations also apply to interpretation of Article 57(2) of the Treaty (now, after amendment, Article 47(2) EC), read in conjunction with Article 66 of the Treaty (now Article 55 EC), those provisions being also intended to confer on the Community legislature specific power to adopt measures intended to improve the functioning of the internal market.

Furthermore, provided that the conditions for recourse to Articles 100a, 57(2) and 66 as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made. On the contrary, the third paragraph of Article 129(1) of the Treaty (now, after amendment, the third paragraph of Article 152(1) EC) provides that health requirements are to form a constituent part of the Community's other policies and Article 100a(3) of the Treaty expressly requires that, in the process of harmonisation, a high level of human health protection is to be ensured.

( see paras 83-84, 86-88 )

3. Directive 98/43 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, adopted on the basis of Articles 57(2) of the Treaty (now, after amendment, Article 47(2) EC), 66 of the Treaty (now Article 55 EC) and 100a of the Treaty (now, after amendment, Article 95 EC) is annulled, since those articles do not constitute an appropriate legal basis for the directive.

On the one hand, although a directive prohibiting the advertising of tobacco products in periodicals, magazines and newspapers could be adopted on the basis of Article 100a of the Treaty with a view to ensuring the free movement of press products, for numerous types of advertising of tobacco products, the prohibition under Article 3(1) of the Directive cannot be justified by the need to eliminate obstacles to the free movement of advertising media or the freedom to provide services in the field of advertising. That applies, in particular, to the prohibition of advertising on posters, parasols, ashtrays and other articles used in hotels, restaurants and cafés, and the prohibition of advertising spots in cinemas, prohibitions which in no way help to facilitate trade in the products concerned. Moreover, the Directive does not ensure free movement of products which are in conformity with its provisions. On the Other hand, although appreciable distortion of competition could be a basis for recourse to Article 100a of the Treaty in order to prohibit certain forms of sponsorship, they are not such as to justify the use of that legal basis for an outright prohibition of advertising of the kind imposed by the Directive.

Accordingly, the Community legislature cannot rely on the need to eliminate obstacles to the free movement of advertising media and the freedom to provide services or on the need to eliminate distortions of competition, either in the advertising sector or in the tobacco products sector, in order to adopt the Directive on the basis of the above articles.

( see paras 98-99, 101, 105, 111, 114, 116 )