Opinion of the Advocate General — ECLI:EU:C:2006:392
Date: 2006-06-13
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Approximation of laws;Public health;Freedom to provide services
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Judgment 1. Approximation of laws – Advertising and sponsorship in respect of tobacco products – Directive 2003/33 (European Parliament and Council Directive 2003/33, Arts 3, 4 and 8) 2. Approximation of laws – Advertising and sponsorship in respect of tobacco products – Directive 2003/33 (European Parliament and Council Directive 2003/33, Art. 3(1)) 3. Approximation of laws – Measures aimed at improving the functioning of the internal market – Legal basis – Article 95 EC (Arts 95 EC and 152 EC) 4. Approximation of laws – Advertising and sponsorship in respect of tobacco products – Directive 2003/33 (European Parliament and Council Directive 2003/33, Arts 3 and 4) 1. The prohibition on the advertising and sponsorship in respect of tobacco products in printed media, in information society services and in radio broadcasts, provided for in Articles 3 and 4 of Directive 2003/33 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, could be adopted on the basis of Article 95 EC. In the light, first, of the press and other printed media products, on the date when Directive 2003/33 was adopted, disparities existed between the Member States’ national laws governing the advertising of tobacco products, and those disparities were such as to impede the free movement of goods and the freedom to provide services. The same finding must be made with regard to the advertising of tobacco products in radio broadcasts and information society services, and in respect of sponsorship by tobacco companies of radio broadcasts. Many Member States had already legislated in those areas or were preparing to do so. Given the increasing public awareness of the harm caused to health by the consumption of tobacco products, it was likely that new barriers to trade or to the freedom to provide services were going to emerge as a result of the adoption of new rules reflecting that development and intended to discourage more effectively the consumption of tobacco products. Moreover, Articles 3 and 4 of Directive 2003/33 do in fact have as their object the improvement of the conditions for the functioning of the internal market. The prohibition on advertising in respect of tobacco products in the press and other printed media, laid down in Article 3(1) of that directive, is intended to prevent intra-Community trade in press products from being impeded by the national rules of one or other Member State. Articles 3(2) and 4(1) of the Directive, which prohibit the advertising of tobacco products in information society services and in radio broadcasting, seek to promote freedom to broadcast by radio and the free movement of communications which fall within information society services. Likewise, in prohibiting the sponsorship of radio programmes by undertakings whose principal activity is the manufacture or sale of tobacco products, Article 4(2) of the Directive seeks to prevent the freedom to provide services from being impeded by the national rules of one or other Member State. Moreover, the objective of the Directive, aimed at improving the conditions of functioning of the internal market, is expressed in Article 8, which provides that Member States may not prohibit or restrict the free movement of products or services which comply with that directive. Lastly, the prohibition laid down in Articles 3 and 4 of the Directive is limited to various forms of advertising and sponsorship and does not amount to a general ban. (see paras 55, 61, 65, 71, 73-78, 87-88) 2. The term ‘printed publications’ used in Article 3(1) of Directive 2003/33 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products covers only publications such as newspapers, periodicals and magazines; other types of publications do not come within the scope of application of the prohibition on advertising laid down in that provision. This interpretation is borne out by the fourth recital in the preamble to the Directive, which notes that the circulation in the internal market of publications such as periodicals, newspapers and magazines is subject to an appreciable risk of obstacles to free movement as a result of Member States’ laws, regulations and administrative provisions which prohibit or regulate tobacco advertising in those media. The same recital states that, in order to ensure free circulation throughout the internal market for all such media, it is necessary to limit tobacco advertising therein to those magazines and periodicals which are not intended for the general public. (see paras 84-86) 3. Provided that the conditions for recourse to Article 95 EC 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. Article 95(3) EC explicitly requires that, in achieving harmonisation, a high level of protection of human health should be guaranteed. Moreover, the first subparagraph of Article 152(1) EC provides that a high level of human health protection is to be ensured in the definition and implementation of all Community policies and activities. Lastly, while it is true that Article 152(4)(c) EC excludes any harmonisation of laws and regulations of the Member States designed to protect and improve human health, that provision does not mean, however, that harmonising measures adopted on the basis of other provisions of the Treaty cannot have any impact on the protection of human health. (see paras 92-95) 4. Articles 3 and 4 of Directive 2003/33 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products do not infringe the principle of proportionality, since they may be regarded as measures appropriate for achieving the objective that they pursue, namely the harmonisation of the law of Member States on the advertising of tobacco products. Nor, given the obligation on the Community legislature to ensure a high level of human health protection, do they go beyond what is necessary in order to achieve that objective. First, the prohibition on the advertising of tobacco products in printed media which is laid down in Article 3 of the Directive does not cover publications intended for professionals in the tobacco trade or published in third countries and not intended principally for the Community market. Furthermore, it was not possible for the Community legislature to adopt, as a less restrictive measure, a prohibition on advertising from which publications intended for a local or regional market would be exempted, given that such an exception would have rendered the field of application of the prohibition on the advertising of tobacco products unsure and uncertain, which would have prevented the Directive from achieving its objective of harmonisation of national law on the advertising of tobacco products. Secondly, the prohibition on the advertising of tobacco products in information society services and in radio broadcasts, as laid down in Articles 3(2) and 4(1) of the Directive, cannot be regarded as disproportionate and can, moreover, be justified by the concern to prevent circumvention, made possible through media convergence, of the prohibition applicable to printed media through increased recourse to those two media. Thirdly, as regards the prohibition on sponsorship of radio programmes which is laid down in Article 4(2) of the Directive, it is not apparent from the preamble to that directive that in not limiting such a measure to activities or events with cross-border effects, the Community legislature exceeded the limits of the discretion available to it in this area. Lastly, nor do the measures laid down in Articles 3 and 4 of the Directive prohibiting advertising and sponsorship infringe the fundamental right of freedom of expression recognised by Article 10 of the European Convention on Human Rights. Even assuming that those measures have the effect of weakening freedom of expression indirectly, journalistic freedom of expression, as such, remains unimpaired and the editorial contributions of journalists are therefore not affected. (see paras 146-152, 156-158)