CELEX: C1998/378/21
Language: en
Date: 1998-12-05 00:00:00
Title: Reference for a preliminary ruling by the Supremo Tribunal Administrativo, Second Chamber, by judgment of that court of 23 September 1998, in the case of Ministério Publico and Fazenda Pública v. Epson Europe BV (Case C-375/98)

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