CELEX: C1998/378/22
Language: en
Date: 1998-12-05 00:00:00
Title: Action brought on 19 October 1998 by the Federal Republic of Germany against the European Parliament and the Council of the European Union (Case C-376/98)

C 378/12              EN                 Official Journal of the European Communities                                     5.12.98
Reference for a preliminary ruling by the Supremo                       administrative provisions of the Member States
Tribunal Administrativo, Second Chamber, by judgment of                 relating to the advertising and sponsorship of tobacco
that court of 23 September 1998, in the case of MinisteÂrio             products;
     Publico and Fazenda PuÂblica v. Epson Europe BV
                       (Case C-375/98)                              2. Order the defendants to pay the costs.
                        (98/C 378/21)
                                                                    Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the
                                                                    Ð Lack of authority to act under Article 100a of the EC
European Communities by a judgment of the Second
                                                                        Treaty: Articles 100 and 100a of the EC Treaty are
Chamber of the Supremo Tribunal Administrativo
                                                                        not available as a legal basis for approximation
(Supreme Administrative Court) of 23 September 1998,
                                                                        measures whose normative content does not contribute
which was received at the Court Registry on 19 October
                                                                        specifically and substantially to improving the
1998, for a preliminary ruling in the case of MinisteÂrio
                                                                        functioning of the internal market. According to its
Publico and Fazenda PuÂblica v. Epson Europe BV on the
                                                                        preamble, the directive is not directed at internal
following questions:
                                                                        market freedom for tobacco products but only at that
                                                                        of the advertising materials themselves and the
                                                                        freedom to provide services of suppliers in the
Must Article 5(4) of Council Directive 90/435/EEC (1)
                                                                        advertising sector. Because of the purely national
of 23 July 1990 on the common system of taxation
                                                                        character of tobacco advertising, there are however Ð
applicable in the case of parent companies and
                                                                        in the absence of cross-frontier movement Ð no
subsidiaries of different Member States, where it fixes the
                                                                        barriers to trade at all for most advertising materials.
exceptional limits of 15 % and 10 % for Portugal, be
                                                                        Even in the only sector of tobacco advertising in
interpreted to the effect that such limits refer only to the
                                                                        which there are the beginnings of such movement
levying of imposto sobre o rendimento das pessoas
                                                                        (print media), none of the periodicals achieves a
colectivas' (in Portugal)?
                                                                        market position in another Member State which could
                                                                        be described as appreciable according to the criteria of
                                                                        Community competition law. Finally, the directive is in
Or does it extend to any tax on the income from shares,
                                                                        fact inappropriate for achieving the internal market
levied on dividends, regardless of the legislative instrument
                                                                        within the meaning of the second paragraph of
which provides for it?'
                                                                        Article 7(a) of the EC Treaty simply because it
                                                                        proposes to remove alleged hindrances by prohibiting
(1) OJ L 225, 20.8.1990, p. 6.                                          the economic activity concerned, which can only be
                                                                        the basis of trade between States.
                                                                        Furthermore, the directive has the effect of restricting
                                                                        competition outside the tobacco sector, in that it also
                                                                        covers advertising for diversification products which
                                                                        are marketed under brands which were originally used
Action brought on 19 October 1998 by the Federal
                                                                        for tobacco products only (umbrella brands').
Republic of Germany against the European Parliament
          and the Council of the European Union
                       (Case C-376/98)                                  In reality, the clear main objective of the contested
                                                                        directive is the protection of health, as also follows in
                        (98/C 378/22)                                   particular from its legislative history. Under Article
                                                                        129(4) of the EC Treaty, however, the Council is
                                                                        prohibited from adopting any harmonisation of the
An action against the European Parliament and the                       laws and regulations of the Member States for the
Council of the European Union was brought before                        achievement of that objective, at least as principal
the Court of Justice of the European Communities                        objective.
on 19 October 1998 by the Federal Republic of
Germany, represented by Claus-Dieter Quassowski,                    Ð Breach of Articles 57(2) and 66 of the EC Treaty:
Regierungsdirektor in the Federal Ministry of Economic                  Since the contested directive does not make easier' but
Affairs, D-53107 Bonn, and Jochim Sedemund,                             forbids the activities of the tobacco advertising sector,
Rechtsanwalt, of Charlottenstraûe 65, D-10117 Berlin.                   both nationally and Ð in so far as it exists Ð in a
                                                                        cross-frontier context, those articles are also manifestly
                                                                        ruled out as legal bases.
The applicant claims that the Court should:
                                                                    Ð (In the alternative) Breach of the principle of
1. Annul Directive 98/43/EC (1) of the European                         proportionality (third paragraph of Article 3(b) of the
    Parliament and of the Council of 6 July 1998 on the                 EC Treaty): A directive which, like the present one,
    approximation of the laws, regulations and                          essentially only obstructs future movement of goods
 ---pagebreak--- 5.12.98               EN                Official Journal of the European Communities                                  C 378/13
    and services in respect of products which at present do        Ð Breach of Article 190 of the EC Treaty: The preamble
    not yet even cross frontiers to an appreciable extent is           to the contested directive contains no statement, or no
    manifestly not necessary for purposes of the internal              adequate statement, of reasons for essential normative
    market.                                                            provisions. It obscures the real main purpose of the
                                                                       directive (protection of health) and does not express
                                                                       the true considerations and motives of the Community
Ð (In the alternative) Breach of the principle of                      institutions which adopted it. It contains no
    subsidiarity: Most tobacco advertising products                    indications whatever as to the observance of
    (posters etc.) are only used nationally and perceived              proportionality and subsidiarity.
    locally, and the few tobacco advertising products
    which are also exported (print media) are not subject
    to any appreciable hindrances in the Member States             (1) OJ L 213, 30.7.1998, p. 9.
    which have prohibitions of tobacco advertising. With
    regard to the internal market there is therefore no
    need for intervention by the Community legislature.
    Since after the directive has been transposed the
    internal market for tobacco advertising products and
    tobacco advertising services' which currently exists at
                                                                   Action brought on 19 October 1998 by Kingdom of the
    least embryonically will be deprived of its legal
                                                                   Netherlands against European Parliament and Council of
    foundation and thereby abolished completely,
                                                                                        the European Union
    regulation by the Member States is also better' with
    regard to the Treaty objective of the internal market.                                (Case C-377/98)
                                                                                           (98/C 378/23)
Ð Infringement of fundamental rights:
                                                                   An action against the European Parliament and the
    Ð Commercial advertising (Article 10 of the
                                                                   Council of the European Union was brought before the
        European Convention on Human Rights): If Ð as
                                                                   Court of Justice of the European Communities on
        in the present case Ð the freedom of tobacco
                                                                   19 October 1998 by the Kingdom of the Netherlands,
        manufacturers and the tobacco advertising
                                                                   represented by Marc Fierstra and Ivo van der Steen,
        industry to express their opinion on tobacco
        consumption is severely restricted by a measure            Assistant Legal Advisers in the Ministry of Foreign
                                                                   Affairs, The Hague, acting as Agents.
        which is neither appropriate nor necessary for
        achieving the legislative aim (improvement of the
        internal market), Article 10 of the Convention is          The applicant claims that the Court should:
        violated. With respect also to the purported
        subsidiary aim of the directive, namely the
        protection of health, a total prohibition of tobacco       1. declare Directive 98/44/EC of the               European
        advertising cannot be justified in view of freedom             Parliament and of the Council (1) void; and
        of expression.
                                                                   2. order the defendant to pay the costs.
    Ð Right to property and freedom to carry on an
        occupation: The prohibition of tobacco advertising
        is a serious interference with the right to property       Pleas in law and main arguments adduced in support:
        and freedom to carry on an occupation of
        producers of tobacco advertising products and
        providers of tobacco advertising services, going as        Ð Incorrect legal basis: Directive 98/44/EC is not
        far as forced abandonment of the entire business in            primarily directed towards the harmonisation of
        the case of specialist undertakings. Also affected,            national patent law principles and moreover goes
        however, is the right to property and freedom to               further than such harmonisation by creating new
        carry on an occupation of tobacco manufacturers,               patent rights of Community origin. Specifically, a
        whose      essential   instrument    of    aggressive          patent is created over living products of
        competition is taken away from them by the                     biotechnological processes and the Directive also
        prohibition of advertising.                                    regulates the scope of that patent protection in a
                                                                       manner which differs from current patent law.
                                                                       Recital 15 in the preamble to the Directive is wrong in
Ð Breach of Articles 30 and 36 of the EC Treaty: A                     stating that no prohibition exists in national patent
    restriction of the free movement of goods with the                 law or the European Patent Convention which
    political aim of protection of health can be justified             precludes a priori the patentability of biological
    only if the need for that restriction has been                     matter; in any event, that statement is not valid for the
    scientifically proved. There is no such proof in the               Netherlands.
    present case, nor is it even attempted in the grounds of
    the contested directive. Nor has the Community
    legislature demonstrated that less drastic measures                Article 100a of the EC Treaty should therefore not
    would not be equally suitable for achieving the health             have been chosen as the legal basis but rather Ð if
    policy objective.                                                  it were really thought necessary to regulate