WRITTEN QUESTION E-1931/02

by Astrid Lulling (PPE-DE) to the Commission

(3 July 2002)

Subject: Preliminary draft law governing the sale, consumption and advertising of alcoholic drinks in Spain

The Spanish Ministry of the Interior is finalising a draft law one purpose of which is to govern the advertising of alcoholic drinks.

As it stands at present, the proposal provides for the following measures on the advertising of alcoholic drinks:

- a total ban on television advertising between 8 a.m. and 9 p.m.;

- authorised radio advertising to be accompanied by a compulsory message drawing attention to the harmful effects of alcohol consumption, particularly for young people;

- a ban on outdoor advertising on the public highway of any alcoholic drink with a volume higher than 20 %;

- a ban on targeting advertising campaigns at young people under 18;

- a ban on advertising in publications aimed at young people.

The Court of Justice of the European Communities, in the conclusions to Case C-405/98 (question referred for a preliminary ruling by the Swedish courts Gourmet case) condemned disproportionate restrictions on advertising, judging them to be incompatible with the single market. They were deemed to favour domestic production to the detriment of products originating in other Member States.

The Commission is finalising a referral to the Court of Justice of the European Communities of a complaint concerning certain restrictions under the Evin Law in France which are incompatible with the operation of the single market in commercial communication services.

In view of these considerations, could the Commission answer the following questions:

1. Do the restrictions that may be introduced in Spain and the difficulty experienced in making imported products known on the market not constitute an obstacle to the single market for producers of alcoholic drinks?

2. Would the restrictions that might be placed on radio and television broadcasts coming from other Member States constitute a similar set of circumstances as those contained in the Commission's complaint against France concerning certain aspects of the Evin Law?

3. To what extent must the Spanish authorities adhere to the principle of proportionality between ends and means?

4. How could the Commission cooperate with the Spanish authorities to ensure that the principle of proportionality is adhered to?

Answer given by Mr Bolkestein on behalf of the Commission

(24 September 2002)

The Honourable Member has informed the Commission about the existence of a draft law in Spain which aims to govern the advertising of alcoholic drinks. The provisions contained in the draft law include a total ban on television advertising between 8 a.m. and 9 p.m., the requirement that authorised radio advertising be accompanied by a message drawing attention to the harmful effects of alcohol consumption, a ban on outdoor advertising on the public highway of drinks with a volume higher than 20 %, a ban on targeting young people under 18, and a ban on advertising in publications aimed at young people.

As the Honourable Member points out, the Court of Justice felt in its Gourmet judgment (C-405/98) that the ban on all advertising of alcohol might affect the marketing of products from other Member States more heavily than the marketing of domestic products, and that it also had an effect on the cross-border supply of advertising space. Considering, however, that such a restriction may be justified by the protection of public health, it felt that Articles 28 and 49 of the Treaty on the free movement of goods and services did not preclude a prohibition on advertising, unless it was apparent that, in the circumstances of law and of fact which characterise the situation in the Member State concerned, the protection of public health could have been ensured by measures having less effect on intra-Community trade. It is therefore necessary to take this case law into consideration when assessing whether the measures described by the Honourable Member are compatible with Articles 28 and 49. Assuming that there is an obstacle to the free movement of goods and services, it will be necessary to examine whether the provisions of the law adhere to the principle of proportionality, i.e. that they are appropriate for achieving the objective pursued and that there is no less restrictive measure which could achieve the same result. The Commission is prepared to discuss the drafting of the law with the Spanish authorities, if they so desire, in order to forestall the introduction of measures which may turn out to be contrary to Community law.

The restrictions which could ensue from the adoption of the measures described would not, however, be similar to those involved in the Commission complaint concerning the Evin law. This complaint relates to obstacles to the broadcasting of sports events by broadcasters established on the territory of the Member State in which the restrictive legislation exists. The hypotheses mentioned by the Honourable Member concern restrictions which could affect broadcasts from other Member States. In this respect, the Court of Justice pointed out in its Agostini judgment that the Television without frontiers Directive(1) does not in principle preclude application of national rules with the general aim of consumer protection, on the condition that they do not involve secondary control of television broadcasts in addition to the control which the broadcasting Member State must carry out. It is stipulated that such measures must not prevent retransmission, as such, in its territory of broadcasts from this other Member State(2).

(1) 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, OJ L 298, 17.10.1989; amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, OJ L 202, 30.7.1997.

(2) CJEC, 9 July 1997, Agostini, C-35/95 and C-36/95, ECR 1997 p. I-03843, points 34 and 38.