Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (Text with EEA relevance)
Date: 2003-05-26
Institutions: Council of the European Union, European Parliament
Subjects: advertising, broadcasting, press, sponsorship, tobacco

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DIRECTIVE 2003/33/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 26 May 2003

on the approximation of the laws, regulations and administrative provisions of the Member States
relating to the advertising and sponsorship of tobacco products

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Articles 47(2), 55 and 95 thereof,

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

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

After consulting the Committee of the Regions,

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

Whereas:

(1)

(2)

(3)

There are differences between the Member States' laws,
regulations and administrative provisions on the adver-
tising of tobacco products and related sponsorship. Such
advertising and sponsorship in certain cases crosses the
borders of the Member States or involves events orga-
nised on an international
level, and are activities to
which Article 49 of the Treaty applies. The differences
in national legislation are likely to give rise to increasing
barriers to the free movement between Member States of
the products or services that serve as the support for
such advertising and sponsorship. In the case of press
advertising, certain obstacles have already been encoun-
tered.
the
In the case of sponsorship, distortions of
conditions of competition are likely to increase and have
already been noted as regards the organisation of certain
major sporting and cultural events.

Those barriers should be eliminated and, to this end, the
rules relating to the advertising of tobacco products and
related sponsorship should in specific cases be approxi-
mated. In particular, there is a need to specify the extent
to which tobacco advertising in certain categories of
publications is allowed.

Article 95(3) of the Treaty requires the Commission, in
its proposals for the establishment and functioning of
the Internal Market concerning health, to take as a base
respective
a high level of protection. Within their
powers, the European Parliament and the Council also
seek to achieve this objective. The legislation of the
Member States to be approximated is intended to protect
public health by regulating the promotion of tobacco, an
addictive product responsible for over half a million

(1) OJ C 270 E, 25.9.2001, p. 97.
(2) OJ C 36, 8.2.2002, p. 104.
(3) Opinion of the European Parliament of 20 November 2002 (not yet
published in the Official Journal) and Decision of the Council of 27
March 2003.

deaths in the Community annually, thereby avoiding a
situation where young people begin smoking at an early
age as a result of promotion and become addicted.

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 adminis-
trative provisions which prohibit or regulate tobacco
advertising in those media. In order to ensure free circu-
lation 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 such as publications intended
exclusively for professionals in the tobacco trade and to
publications printed and published in third countries,
that are not principally intended for the Community
market.

The laws, regulations and administrative provisions of
the Member States relating to certain types of sponsor-
ship for the benefit of tobacco products with cross-
border effects give rise to an appreciable risk of distor-
tion of the conditions of competition for this activity
within the Internal Market. In order to eliminate these
distortions, it is necessary to prohibit such sponsorship
only for those activities or events with cross-border
effects which otherwise may be a means of circum-
venting the restrictions placed on direct forms of adver-
tising, without
regulating sponsorship on a purely
national level.

Use of information society services is a means of adver-
tising tobacco products which is increasing as public
consumption and access to such services increases. Such
services, as well as radio broadcasting, which may also
be transmitted via information society services, are parti-
cularly attractive and accessible to young consumers.
Tobacco advertising by both these media has, by its very
nature, a cross-border character, and should be regulated
at Community level.

Free distribution of tobacco products is subject to restric-
tion in several Member States, given its high potential to
create addiction. Cases of free distribution have occurred
in the context of the sponsorship of events having cross-
border effects and should therefore be prohibited.

(4)

(5)

(6)

(7)

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(8)

Internationally applicable standards for the advertising of
tobacco products and related sponsorship are the subject
of negotiations for the drafting of a World Health Orga-
nisation Framework Convention on Tobacco Control.
These negotiations are intended to create binding inter-
national rules complementary to those contained in this
Directive.

(13) Advertising relating to medicinal products for human
use is covered by Directive 2001/83/EC of the European
Parliament and of the Council of 6 November 2001 on
the Community code relating to medicinal products for
human use (2). Advertising relating to products intended
for use in overcoming addiction to tobacco does not fall
within the scope of this Directive.

(9)

The Commission should draw up a report on the imple-
mentation of this Directive. Provision should be made in
the relevant Community programmes to monitor the
effects of this Directive on public health.

(10) Member States should take adequate and effective steps
to ensure control of the implementation of measures
adopted pursuant to this Directive in compliance with
their national legislation, as provided for in Commission
Communication to the European Parliament and the
Council on the role of penalties
in implementing
legislation and in the
Community Internal Market
Council Resolution of 29 June 1995 on the effective
uniform application of Community law and on the
penalties applicable for breaches of Community law in
the Internal Market (1). Such means should include provi-
sion for intervention of persons or organisations with
legitimate interest in the suppression of activities that
are not in conformity with this Directive.

(11)

The penalties provided for under this Directive should
be without prejudice to any other penalty or remedy
provided under national law.

(12)

the advertising of

This Directive regulates
tobacco
products in the media other than television, i.e. in the
press and other printed publications,
in radio broad-
casting and in information society services. It also regu-
lates the sponsorship, by tobacco companies, of radio
programmes and of events or activities involving, or
taking place in, several Member States or otherwise
having cross-border
free or
discounted distribution of tobacco products. Other forms
of advertising, such as indirect advertising, as well as the
sponsorship of events or activities without cross-border
effects, fall outside the scope of this Directive. Subject to
the Treaty, Member States retain the competence to
regulate these matters as they deem necessary to guar-
antee the protection of human health.

including the

effects,

(1) OJ C 188, 22.7.1995, p. 1.

(14)

(15)

This Directive should be without prejudice to Council
Directive 89/552/EEC of 3 October 1989 on the coordi-
nation of certain provisions laid down by law, regulation
or administrative action in Member States concerning
the pursuit of television broadcasting activities (3), which
prohibits all forms of television advertising for cigarettes
and other
tobacco products. Directive 89/552/EEC
provides that television programmes may not be spon-
sored by undertakings whose principal activity is the
manufacture or sale of cigarettes and other tobacco
products, or the provision of services, the advertising of
which is prohibited by that Directive. Teleshopping for
tobacco products is also prohibited by Directive 89/552/
EEC.

The transnational character of advertising is recognised
by Council Directive 84/450/EEC of 10 September 1984
relating to the approximation of the laws, regulations
and administrative provisions of
the Member States
concerning misleading advertising (4). Directive 2001/37/
EC of the European Parliament and of the Council of 5
June 2001 on the approximation of the laws, regulations
and administrative provisions of
the Member States
concerning the manufacture, presentation and sale of
tobacco products (5), contains provisions on the use of
misleading descriptions on the labelling of
tobacco
products, the cross-border effect of which has also been
recognised.

(16) Directive 98/43/EC of the European Parliament and of
the Council of 6 July 1998 on the approximation of the
laws, regulations and administrative provisions of the
Member States relating to the advertising and sponsor-
ship of tobacco products (6) was annulled by the Court
of Justice in Case C-376/98 Federal Republic of Germany v
European Parliament and Council of the European Union (7).
References to Directive 98/43/EC should therefore be
construed as references to this Directive.

(2) OJ L 311, 28.11.2001, p. 67.
(3) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive
97/36/EC of the European Parliament and of the Council (OJ L 202,
30.7.1997, p. 60).

(4) OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive 97/
55/EC of the European Parliament and of the Council (OJ L 290,
23.10.1997, p. 18).

(5) OJ L 194, 18.7.2001, p. 26.
(6) OJ L 213, 30.7.1998, p. 9.
(7) [2000] ECR I-8419.

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(17)

In accordance with the principle of proportionality, it is
necessary and appropriate for the achievement of the
basic objective of the proper functioning of the Internal
Market to lay down rules on the advertising of tobacco
products and related sponsorship. This Directive does
not go beyond what is necessary in order to achieve the
objectives pursued in accordance with the third para-
graph of Article 5 of the Treaty.

(18)

the fundamental

rights and
This Directive respects
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.
In particular, this Directive seeks to ensure respect for
the fundamental right of freedom of expression,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject-matter and scope

1.
The objective of this Directive is to approximate the laws,
regulations and administrative provisions of the Member States
tobacco products and their
relating to the advertising of
promotion:

(a) in the press and other printed publications;

(b) in radio broadcasting;

(c) in information society services; and

(d) through tobacco related sponsorship,

including the free

distribution of tobacco products.

2.
This Directive is intended to ensure the free movement of
the media concerned and of related services and to eliminate
obstacles to the operation of the Internal Market.

Article 2

Definitions

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

(a) ‘tobacco products’ means all products intended to be
smoked, sniffed, sucked or chewed inasmuch as they are
made, even partly, of tobacco;

(b) ‘advertising’ means any form of commercial communica-
tions with the aim or direct or indirect effect of promoting
a tobacco product;

(c) ‘sponsorship’ means any form of public or private contribu-
tion to any event, activity or individual with the aim or
direct or indirect effect of promoting a tobacco product;

(d) ‘information society services’ means services within the
the
meaning of Article 1(2) of Directive 98/34/EC of
European Parliament and of the Council of 22 June 1998

laying down a procedure for the provision of information
in the field of technical standards and regulations and of
rules on information society services (1).

Article 3

Advertising in printed media and information society
services

1.
Advertising in the press and other printed publications
shall be limited to publications intended exclusively for profes-
sionals in the tobacco trade and to publications which are
printed and published in third countries, where those publica-
tions are not principally intended for the Community market.

Other advertising in the press and other printed publications
shall be prohibited.

2.
Advertising that is not permitted in the press and other
printed publications shall not be permitted in information
society services.

Article 4

Radio advertising and sponsorship

All forms of radio advertising for tobacco products shall

1.
be prohibited.

2.
Radio programmes shall not be sponsored by undertak-
ings whose principal activity is the manufacture or sale of
tobacco products.

Article 5

Sponsorship of events

1.
Sponsorship of events or activities involving or taking
place in several Member States or otherwise having cross-
border effects shall be prohibited.

2.
Any free distribution of tobacco products in the context
of the sponsorship of the events referred to in paragraph 1
having the purpose or the direct or indirect effect of promoting
such products shall be prohibited.

Article 6

Report

to the European Parliament,

No later than 20 June 2008, the Commission shall submit a
report
the Council and the
European Economic and Social Committee on the implementa-
tion of this Directive. That report shall be accompanied by any
proposals for amendments to this Directive which the Commis-
sion deems necessary.

(1) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/

48/EC (OJ L 217, 5.8.1998, p. 18).

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Article 7

Penalties and enforcement

Article 10

Implementation

Member States shall lay down the rules on penalties applicable
to infringements of the national provisions adopted pursuant
to this Directive and shall take all measures necessary to ensure
that they are implemented. The penalties provided for must be
effective, proportionate and dissuasive. The Member States shall
notify those rules to the Commission by the date specified in
Article 10 at the latest and shall notify it without delay of any
subsequent amendment affecting them.

Those rules shall include provisions ensuring that persons or
legislation, can justify a
organisations which, under national
legitimate interest in the suppression of advertising, sponsor-
ship or other matters incompatible with this Directive, may
take legal action against such advertising or sponsorship or
bring such advertising or sponsorship to the attention of an
to pronounce on
administrative body competent
complaints or to institute the appropriate legal proceedings.

either

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 31 July 2005 at the latest. They shall forthwith
inform the Commission thereof.

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

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

Article 11

Entry into force

This Directive shall enter into force on the day of its publica-
tion in the Official Journal of the European Union.

Article 8

Free movement of products and services

Article 12

Addressees

Member States shall not prohibit or restrict the free movement
of products or services which comply with this Directive.

This Directive is addressed to the Member States.

Article 9

References to Directive 98/43/EC

References
construed as references to this Directive.

to the annulled Directive 98/43/EC shall be

Done at Brussels, 26 May 2003.

For the European Parliament

The President

P. COX

For the Council

The President

G. DRYS