COMMON POSITION (EC) No 15/98 adopted by the Council on 12 February 1998 with a view to adopting Directive 98/.../EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (98/C 91/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 57(2), 66 and 100a thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

(1) Whereas there are differences between the Member States' laws, regulations and administrative provisions on the advertising and sponsorship of tobacco products; whereas such advertising and sponsorship transcend the borders of the Member States and the differences in question are likely to give rise to barriers to the movement between Member States of the products which serve as the media for such advertising and sponsorship and to freedom to provide services in this area, as well as distort competition, thereby impeding the functioning of the internal market;

(2) Whereas those barriers should be eliminated and, to this end, the rules relating to the advertising and sponsoring of tobacco products should be approximated, whilst leaving Member States the possibility of introducing, under certain conditions, such requirements as they consider necessary in order to guarantee the protection of the health of individuals;

(3) Whereas, in accordance with Article 100a(3) of the Treaty, the Commission is obliged, in its proposals under paragraph 1 concerning health, safety, environmental protection and consumer protection, to take as a base a high level of protection;

(4) Whereas this Directive must therefore take due account of the health protection of individuals, in particular in relation to young people, for whom advertising plays an important role in tobacco promotion;

(5) Whereas in order to ensure the proper functioning of the internal market the Council adopted, on the basis of Article 100a, Directive 89/622/EEC (4) and Directive 90/239/EEC (5) concerning the labelling of tobacco products and the maximum tar yield of cigarettes, respectively;

(6) Whereas advertising relating to medicinal products for human use is covered by Directive 92/28/EEC (6); whereas advertising relating to products intended for use in overcoming addiction to tobacco does not fall within the scope of this Directive;

(7) Whereas this Directive will not apply to communications intended exclusively for professionals in the tobacco trade, the presentation of tobacco products offered for sale and the indication of their prices, and, depending on sales structures, advertising directed at purchasers at tobacco sales outlets and the sale of third-country publications which do not satisfy the conditions laid down in this Directive, provided, however, that they comply with Community law and the Community's obligations at international level; whereas it is for the Member States, where necessary, to take appropriate measures in these areas;

(8) Whereas, given the interdependence between the various forms of advertising - oral, written, printed, on radio or television or at the cinema - and in order to prevent any risk of distorting competition or circumventing rules and regulations, this Directive must cover all forms and means of advertising apart from television advertising already covered by Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (7);

(9) Whereas all forms of indirect advertising and sponsorship, and likewise free distribution, have the same effects as direct advertising, and whereas they should, without prejudice to the fundamental principle of freedom of expression, be regulated, including indirect forms of advertising which, while not mentioning the tobacco product directly, use brand names, trade marks, emblems or other distinctive features associated with tobacco products; whereas, however, Member States may defer application of these provisions to allow time for commercial practices to be adjusted and sponsorship of tobacco products to be replaced by other suitable forms of support;

(10) Whereas, without prejudice to the regulation of the advertising of tobacco products, Member States remain free to allow the continued use, under certain conditions, for the advertising of products or services other than tobacco products, of a brand name which was already in use in good faith both for such products or services and for tobacco products before this Directive entered into force;

(11) Whereas existing sponsorship of events or activities which Member States may continue to authorise for a period of eight years after the entry into force of this Directive ending not later than 1 October 2006 and which will be subject to voluntary-restraint measures and decrease of expenditure levels during the transitional period should include all means of achieving the aims of sponsorship as defined in this Directive;

(12) Whereas Member States must take adequate and effective steps to ensure control of the implementation of national measures adopted pursuant to this Directive in compliance with their national legislation,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

The objective of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products.

Article 2

For the purposes of this Directive, the following definitions shall apply:

1. 'tobacco products`: all products intended to be smoked, sniffed, sucked or chewed inasmuch as they are made, even partly, of tobacco;

2. 'advertising`: any form of commercial communication with the aim or the direct or indirect effect of promoting a tobacco product, including advertising which, while not specifically mentioning the tobacco product, tries to circumvent the advertising ban by using brand names, trademarks, emblems or other distinctive features of tobacco products;

3. 'sponsorship`: any public or private contribution to an event or activity with the aim or the direct or indirect effect of promoting a tobacco product;

4. 'tobacco sales outlet`: any place where tobacco products are offered for sale.

Article 3

1. Without prejudice to Directive 89/552/EEC, all forms of advertising and sponsorship shall be banned in the Community.

2. Paragraph 1 shall not prevent the Member States from allowing a brand name already used in good faith both for tobacco products and for other goods or services traded or offered by a given undertaking or by different undertakings prior to . . . (8*) to be used for the advertising to those other goods or services.

However, this brand name may not be used except in a manner clearly distinct from that used for the tobacco product, without any further distinguishing mark already used for a tobacco product.

3. (a) Member States shall ensure that no tobacco product bears the brand name, trademark, emblem or other distinctive feature of any other product or service, unless the tobacco product has already been traded under that brand name, trademark, emblem or other distinctive feature on the date referred to in Article 6(1).

(b) The ban provided for in paragraph 1 may not be circumvented, in respect of any product or service placed or offered on the market as from the date laid down in Article 6(1), by the use of brand names, trademarks, emblems and other distinguishing features already used for a tobacco product.

To this end, the brand name, trademark, emblem and any other distinguishing feature of the product or service must be presented in a manner clearly distinct from that used for the tobacco product.

4. Any free distribution having the purpose or the direct or indirect effect of promoting a tobacco product shall be banned.

5. This Directive shall not apply to:

- communications intended exclusively for professionals in the tobacco trade,

- the presentation of tobacco products offered for sale and the indication of their prices at tobacco sales outlets,

- advertising aimed at purchasers in establishments specialising in the sale of tobacco products and on their shop-fronts or, in the case of establishments selling a variety of articles or services, at locations reserved for the sale of tobacco products, and at sales outlets which, in Greece, are subject to a special system under which licences are granted for social reasons ('periptera`),

- the sale of publications containing advertising for tobacco products which are published and printed in third countries, where those publications are not principally intended for the Community market.

Article 4

Member States shall ensure that adequate and effective means exist of ensuring and monitoring the implementation of national measures adopted pursuant to this Directive. These means may include provisions whereby persons or organisations with a legitimate interest under national law in the withdrawal of advertising which is incompatible with this Directive may take legal proceedings against such advertising or bring such advertising to the attention of an administrative body competent to give a ruling on complaints or to institute the appropriate legal proceedings.

Article 5

This Directive shall not preclude Member States from laying down, in accordance with the Treaty, such stricter requirements concerning the advertising or sponsorship of tobacco products as they deem necessary to guarantee the health protection of individuals.

Article 6

1. Member States shall bring into force the laws, regulations, and administrative provisions necessary to comply with this Directive not later than . . . (9*). They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of domestic law which they adopt in the field covered by this Directive.

3. Member States may defer the implementation of Article 3(1) for:

- one year in respect of the press,

- two years in respect of sponsorship.

In exceptional cases and for duly justified reasons, Member States may continue to authorise the existing sponsorship of events or activities organised at world level for a further period of three years ending not later than 1 October 2006, provided that:

- the sums devoted to such sponsorship decrease over the transitional period,

- voluntary-restraint measures are introduced in order to reduce the visibility of advertising at the events or activities concerned.

Article 7

The Commission shall submit to the European Parliament, the Council and the Economic and Social Committee not later than . . . (10*), and subsequently every two years, a report on the implementation of this Directive, with particular reference to the implementation and effects of Article 3(2) and (3) and Article 6(3). Where appropriate, it shall submit proposals for the adaptation of this Directive to suit developments identified in the report. Such adaptation shall not affect the periods provided for in Article 6(3).

Article 8

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 9

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(1) OJ C 129, 21.5.1992, p. 5.

(2) OJ C 313, 30.11.1992, p. 27.

(3) Opinion of the European Parliament of 11 February 1992 (OJ C 67, 16.3.1992, p. 35), confirmed under the Article 189b procedure on 3 December 1993, Council common position of 12 February 1998 and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ L 359, 8.12.1989, p. 1. Directive as amended by Directive 92/41/EEC (OJ L 158, 11.6.1992, p. 30).

(5) OJ L 137, 30.5.1990, p. 36.

(6) OJ L 113, 30.4.1992, p. 13.

(7) OJ L 298, 17.10.1989, p. 23. Directive as last amended by Directive 97/36/EC (OJ L 202, 30.7.1997, p. 60).

(8*) Date of entry into force of this Directive.

(9*) Three years after the entry into force of this Directive.

(10*) Three years after the entry into force of this Directive.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. Subsequent to and in place of an initial proposal presented in 1989 in this field (1), the Commission submitted on 15 May 1991 an amended proposal for a Council directive on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising of tobacco products (2), based on Article 100a of the Treaty establishing the European Community.

2. The European Parliament delivered its opinion on 11 February 1992 (3), and confirmed it on 3 December 1993 under the co-decision procedure provided for in Article 189b of the Treaty.

The Economic and Social Committee delivered its opinion on 23 September 1992 (4).

In the light of the European Parliament's opinion, the Commission presented a new amended proposal (5) on 30 April 1992.

3. On 12 February 1998, the Council adopted its common position in accordance with Article 189b of the Treaty.

II. OBJECTIVE OF THE PROPOSAL

The proposal aims to approximate the differing national provisions on advertising for tobacco products, taking as a basis a high level of health protection.

The amended proposal submitted by the Commission, which takes into account the discussions held in the Council and the European Parliament on the initial proposal - which provided for limitations on advertising for tobacco products in the press and by means of bills and posters - and the situation regarding national laws in this field and their likely further development, aimed for full harmonisation, by banning such advertising, whatever the form or medium used (6).

The only exception (possibility of exemption) to this ban related to advertising within tobacco sales outlets having enclosed indoor premises for serving their customers.

The only limitation, introduced following the Parliament's opinion, related under certain conditions to the scope of the ban on indirect advertising in the case of non-tobacco products marketed under the same trademark as tobacco products.

III. ANALYSIS OF THE COMMON POSITION

1. Overview

Within the framework of the proposed objective, the text adopted by the Council confines itself to amendments which are intended primarily to clarify and circumscribe the field of application and scope and/or which meet operational concerns.

These amendments relate primarily to:

(a) sponsorship, which is explicitly covered;

(b) specifications concerning the scope of the ban on indirect advertising by the use of trademarks (and other distinctive features);

(c) the definition of certain fields or aspects - including the question of sales outlets - to which the Directive does not apply, which may be regulated at national level;

(d) the special conditions governing the implementation and monitoring of certain provisions, particularly with regard to indirect advertising and sponsorship.

2. Content of the enacting terms

The enacting terms, the structure and components of which have not been substantially amended compared to the proposal, have been adjusted as follows, (Article 1 (new) is merely a formal addition):

(i) Article 2 (former Article 1) - definitions:

- the scope of the definition of advertising has not been amended. The more general wording adopted ('any form of communication`) covers a broader field and the description 'commercial` is intended merely to specify that communications in the context of purely artistic or journalistic activities do not fall within the scope of advertising,

- a definition of sponsorship, formulated by analogy with that of advertising, is introduced for the purpose of the Directive and the rules relating thereto,

- the definition of tobacco sales outlets, for the purpose of the exceptions provided for in the second and third indents of Article 2(5), is expressed in more general and extensive terms than that proposed;

(ii) Article 3 (former Article 2) - substantive provisions:

(a) in paragraph 1, the general banning of all forms of advertising is extended to sponsorship;

(b) in paragraphs 2 and 3 (former paragraphs 2, 2a and 3), the specifications concerning the scope of the ban on indirect advertising through the use of trademarks (and other distinctive features) are reworded as follows:

- the possibility of limiting the scope of the ban - laid down in paragraph 2 - as regards the use under quite specific conditions of brand names in advertising for products (or services) other than tobacco products, is in line with the objective referred to in paragraph 2a of the proposal,

- paragraph 3(a) meets, in more specific and operational terms, the objective of the provision laid down in paragraph 3 of the proposal, as regards the use for tobacco products of brand names, trademarks (or other distinctive features) already used for other products (or services),

- paragraph 3(b), which refers to any use for any product (or service) of brand names, trademarks (or other distinctive features) associated with tobacco products under conditions likely to circumvent the ban on advertising, is intended to reinforce the scope of the objective of paragraph 2 of the proposal, which has not been incorporated as such as this provision in the given form is considered to be covered by the ban set out in paragraph 1 by reference to the definition of advertising given in Article 2.

(c) The wording of the ban on free distribution laid down in paragraph 4 has been adapted so as to target the objective more effectively by analogy with the definition of advertising.

(d) The fields not covered, which are for the Member States to regulate, if they so wish, are set out in paragraph 5 (new).

This paragraph, covering a broader field, replaces Article 3 of the proposal - which is deleted.

The scope of these exceptions is as follows:

- communications between professionals in the tobacco trade, addressed exclusively to them and not to the general public (first indent); such communications therefore do not fall within the scope of the definition of advertising for the purpose of the Directive,

- with regard to the provisions relating to sales outlets:

- in general, those relating to the presentation of products and to the indication of their price (second indent),

- more specifically, in accordance with the Commission proposal but making greater allowance for the different sales structures in the Member States, advertising aimed at purchasers (third indent);

- the sale of publications originating from third countries (fourth indent) - under conditions designed to prevent distortion; this exception is intended to ensure observance of the right to information which is part of freedom of expression.

(iii) The proposed provisions concerning the means of monitoring implementation (Article 4) and the possibility of laying down stricter requirements (Article 5) at national level were subject only to limited adjustments.

(iv) The provisions of Article 6 concerning the transposition and implementation of the provisions in the Member States have been reworded to allow for the necessary adjustments and adaptations of commercial practice and to take account of economic constraints.

The period specified for transposition is in general three years (paragraph 1), but paragraph 3 provides for the possibility of deferring implementation:

- in respect of the press, for one year,

- in respect of sponsorship in general, for two years, and, under certain conditions and within specific limits for existing sponsorship of events or activities organised at world level, for a further period of three years ending not later than 1 October 2006, the date on which all provisions of the Directive will be applicable.

(v) Provisions are introduced (new Article 7) with a view to appropriate monitoring (through reports and, where appropriate, proposals from the Commission for adaptation) of the implementation and effects of the Directive, particularly with regard to procedures concerning indirect advertising and conditions applicable to sponsorship.

IV. AMENDMENTS PROPOSED BY THE EUROPEAN PARLIAMENT

1. Amendment 10 accepted by the Commission

This amendment - one of the most substantial - which introduces under certain conditions a limitation on the ban referred to in Article 2(2) of the proposal, is the only one incorporated by the Commission in its proposal (Article 2(2a)).

The objective of this amendment is taken into account in the Council's text (Article 3(2)) in a different form and by different means (see point III(2)(ii)(b) above).

These means take particular account of the difficulties in implementing the conditions specified, linked in particular to the method of determining a company's annual turnover of tobacco products (following a full examination, these difficulties appeared to be insurmountable).

The provision adopted by the Council is not moreover a binding rule, but represents for Member States, which are free to impose stricter requirements.

2. Other amendments, not adopted by the Commission

(a) Amendments adopted, in full or in part, by the Council

- Amendment 4 (Article 1, first indent) concerning the mention of sponsorship, which is included under a specific definition, in Article 2(3),

- Amendment 8 (Article 5),

- Amendment 9 (Article 6(2a) (new)), in a more specific and detailed form, in Article 7 of the Council's text.

(b) Amendments not adopted as such by the Council

The Council, in general following the Commission and for the reasons given, has not adopted the other amendments.

V. CONCLUSION

The text of the common position, which is the outcome of full and difficult examination and discussions within the Council, largely meets the objective of the proposal, with adjustments primarily intended to clarify and specify its field of application and operational scope, taking into account the operating objectives of the internal market, the very specific characteristics of the sector and health requirements in a field in which health is an important factor.

(1) Proposal for a Directive on the advertising of tobacco products in the press and by means of bills and posters (OJ C 124, 19.5.1989, p. 5).

(2) OJ C 167, 27.6.1991, p. 3.

(3) OJ C 67, 16.3.1992, p. 35.

(4) OJ C 313, 30.11.1992, p. 27.

(5) OJ C 129, 21.5.1992, p. 5.

(6) Given that advertising on radio and television has in the meantime already been covered, as regards the provision of services between Member States, by Council Directive 89/552/EEC of 3 October 1989 (OJ L 298, 17.10.1989, p. 23) - as amended by Directive 97/36/EC of 30 June 1997 (OJ L 202, 30.7.1997, p. 60) - Article 13 of which prohibits all forms of advertising (and teleshopping) for cigarettes and other tobacco products.