Federal Republic of Germany v European Parliament and Council of the European Union.
Date: 2006-12-12
37. While a mere finding of disparities between national rules is not sufficient to justify having recourse to Article 95 EC, it is otherwise where there are differences between the laws, regulations or administrative provisions of the Member States which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market (see, to this effect, the tobacco advertising judgment, paragraphs 84 and 95; Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco  [2002] ECR I-11453, paragraph 60; Case C-434/02 Arnold André  [2004] ECR I‑11825, paragraph 30; Case C-210/03 Swedish Match  [2004] ECR I-11893, paragraph 29; and Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others [2005] ECR I-6451, paragraph 28).
38. It is also settled case-law that, although recourse to Article 95 EC as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them (Case C-350/92 Spain  v Council  [1995] ECR I-1985, paragraph 35; Case C‑377/98 Netherlands  v Parliament and Council  [2001] ECR I-7079, paragraph 15; British American Tobacco (Investments) and Imperial Tobacco , paragraph 61; Arnold André , paragraph 31; Swedish Match , paragraph 30; and Alliance for Natural Health and Others , paragraph 29).
39. The Court has also held that, provided that the conditions for recourse to Article 95 EC as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 62; Arnold André , paragraph 32; Swedish Match , paragraph 31; and Alliance for Natural Health and Others , paragraph 30).
40. It should be noted that the first subparagraph of Article 152(1) EC provides that a high level of human health protection is to be ensured in the definition and implementation of all Community policies and activities, and that Article 95(3) EC explicitly requires that, in achieving harmonisation, a high level of protection of human health should be guaranteed ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 62; Arnold André , paragraph 33; Swedish Match , paragraph 32; and Alliance for Natural Health and Others , paragraph 31).
41. It follows from the foregoing that when there are obstacles to trade, or it is likely that such obstacles will emerge in the future, because the Member States have taken, or are about to take, divergent measures with respect to a product or a class of products, which bring about different levels of protection and thereby prevent the product or products concerned from moving freely within the Community, Article 95 EC authorises the Community legislature to intervene by adopting appropriate measures, in compliance with Article 95(3) EC and with the legal principles mentioned in the EC Treaty or identified in the case-law, in particular the principle of proportionality ( Arnold André , paragraph 34; Swedish Match , paragraph 33; and Alliance for Natural Health and Others , paragraph 32).
42. It is also to be observed that, by using the words ‘measures for the approximation’ in Article 95 EC, the authors of the Treaty intended to confer on the Community legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features (see Case C-66/04 United Kingdom  v Parliament and Council  [2005] ECR I-10553, paragraph 45, and Case C-217/04 United Kingdom  v Parliament and Council  [2006] ECR I-3771, paragraph 43).
43. Depending on the circumstances, those measures may consist in requiring all the Member States to authorise the marketing of the product or products concerned, subjecting such an obligation of authorisation to certain conditions, or even provisionally or definitively prohibiting the marketing of a product or products ( Arnold André , paragraph 35; Swedish Match , paragraph 34; and Alliance for Natural Health and Others , paragraph 33).
45. First of all, it is to be recalled that the Court has already found that, at the time of adoption of Directive 98/43, disparities existed between national laws on the advertising of tobacco products and that there was a trend in national legislation towards ever greater restrictions (the tobacco advertising judgment, paragraphs 96 and 97).
46. It is common ground that, as mentioned in the first recital in the preamble to Directive 2003/33, at the time of the Directive’s adoption there were differences, as regards those products, between the Member States’ laws, regulations and administrative provisions. According to the information given by the Commission in its written observations, when the draft directive was submitted advertising and/or sponsorship in respect of such products were partially prohibited in six Member States, totally prohibited in four, and the subject of legislative proposals seeking a total prohibition in the remaining five.
47. Having regard, in addition, to the enlargement of the European Union through the accession of 10 new Member States, there was an appreciable risk that those disparities would increase. According to the Commission, some of the new Member States envisaged a total prohibition on advertising and sponsorship in respect of tobacco products while others accepted such acts subject to compliance with certain conditions.
48. The fact that, as pointed out in the eighth recital in the preamble to the Directive, at the time of its adoption negotiations were in progress under the aegis of the World Health Organisation with a view to drawing up a Framework Convention on Tobacco Control (‘the WHO Convention’) does not affect this finding.
49. It is true that the WHO Convention seeks to reduce consumption of tobacco products by providing, inter alia, for a comprehensive ban on advertising, promotion and sponsorship in respect of tobacco products. However, the Convention entered into force after the Directive and not all the Member States have ratified it.
50. Furthermore, the Member States which have signed the Convention are free, under Article 13(2) thereof, to adopt, within a period of five years after the Convention’s entry into force, either a comprehensive ban on tobacco advertising, promotion and sponsorship or, if they are not in a position to undertake a comprehensive ban due to their constitution or constitutional principles, only certain restrictions.
51. It follows that, at the time of the Directive’s adoption, disparities existed between national rules on advertising and sponsorship in respect of tobacco products which justified intervention by the Community legislature.
53. The market in press products, like the radio market, is a market in which trade between Member States is relatively sizeable and is set to grow further as a result, in particular, of the link between the media in question and the internet, which is the cross-border medium par excellence .
55. Also, on the date when the Directive was adopted, several Member States already prohibited advertising of tobacco products, as indicated in paragraph 46 of the present judgment, while others were about to do so. Consequently, disparities existed between the Member States’ national laws and, contrary to the applicant’s submissions, those disparities were such as to impede the free movement of goods and the freedom to provide services.
57. Second, such measures restrict the ability of undertakings established in the Member States where they are in force to offer advertising space in their publications to advertisers established in other Member States, thereby affecting the cross-border supply of services (see, to this effect, Case C-405/98 Gourmet International Products  [2001] ECR I-1795, paragraphs 38 and 39).
67. In any event, as the Court has already held, when the existence of obstacles to trade has been established, it is not necessary also to prove distortions of competition in order to justify recourse to Article 95 EC (see British American Tobacco (Investments) and Imperial Tobacco , paragraph 60).
80. Recourse to Article 95 EC as a legal basis does not presuppose the existence of an actual link with free movement between the Member States in every situation covered by the measure founded on that basis. As the Court has previously pointed out, to justify recourse to Article 95 EC as the legal basis what matters is that the measure adopted on that basis must actually be intended to improve the conditions for the establishment and functioning of the internal market (see, to this effect, Joined Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others  [2003] ECR I-4989, paragraphs 41 and 42, and Case C-101/01 Lindqvist  [2003] ECR I-12971, paragraphs 40 and 41).
88. It follows from the foregoing that Article 95 EC constitutes an appropriate legal basis for Articles 3 and 4 of the Directive.
94. The first subparagraph of Article 152(1) EC provides that a high level of human health protection is to be ensured in the definition and implementation of all Community policies and activities ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 62; Arnold André , paragraph 33; Swedish Match , paragraph 32; and Alliance for Natural Health and Others , paragraph 31).
107. Although the statement of reasons required by Article 253 EC must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review, it is not required to go into every relevant point of fact and law (Case C-122/94 Commission  v Council  [1996] ECR I‑881, paragraph 29; British American Tobacco (Investments) and Imperial Tobacco , paragraph 165; Arnold André , paragraph 61; Swedish Match , paragraph 63; and Alliance for Natural Health and Others , paragraph 133).
108. Furthermore, the question whether a statement of reasons satisfies the requirements must be assessed with reference not only to the wording of the measure but also to its context and to the whole body of legal rules governing the matter in question. If the contested measure clearly discloses the overall objective pursued by the Community institution concerned, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution (Case C-100/99 Italy  v Council and Commission  [2001] ECR I-5217, paragraph 64; British American Tobacco (Investments) and Imperial Tobacco , paragraph 166; Arnold André , paragraph 62; Swedish Match , paragraph 64; and Alliance for Natural Health and Others , paragraph 134).
144. The principle of proportionality, which is one of the general principles of Community law, requires the means employed by a Community provision to be appropriate for attaining the objective pursued and not to go beyond what is necessary to achieve it (see, inter alia, Case 137/85 Maizena and Others  [1987] ECR 4587, paragraph 15; Case C-339/02 ADM Ölmühlen  [1993] ECR I-6473, paragraph 15; and Case C-210/00 Käserei Champignon Hofmeister  [2002] ECR I‑6453, paragraph 59).
145. With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in an area such as that involved in the present case, which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue (see, to this effect, Case C-84/94 United Kingdom  v Council  [1996] ECR I-5755, paragraph 58; Case C-233/94 Germany  v Parliament and Council  [1997] ECR I-2405, paragraphs 55 and 56; Case C-157/96 National Farmers’ Union and Others  [1998] ECR I-2211, paragraph 61; and British American Tobacco (Investments) and Imperial Tobacco , paragraph 123).
149. Furthermore, contrary to the applicant’s assertions, it was not possible for the Community legislature to adopt, as a less restrictive measure, a prohibition on advertising from which publications intended for a local or regional market would be exempted, given that such an exception would have rendered the field of application of the prohibition on the advertising of tobacco products unsure and uncertain, which would have prevented the Directive from achieving its objective of harmonisation of national law on the advertising of tobacco products (see, to this effect, Lindqvist , paragraph 41).
154. In accordance with settled case-law, whilst the principle of freedom of expression is expressly recognised by Article 10 of the ECHR and constitutes one of the fundamental pillars of a democratic society, it nevertheless follows from Article 10(2) that freedom of expression may also be subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to this effect, Case C-368/95 Familiapress  [1997] ECR I‑3689, paragraph 26; Case C-60/00 Carpenter  [2002] ECR I‑6279, paragraph 42; Case C-112/00 Schmidberger  [2003] ECR I‑5659, paragraph 79; and Karner , paragraph 50).
155. Also, as has been correctly pointed out by the Parliament, the Council and the parties intervening in support of them, the discretion enjoyed by the competent authorities in determining the balance to be struck between freedom of expression and the objectives in the public interest which are referred to in Article 10(2) of the ECHR varies for each of the goals justifying restrictions on that freedom and depends on the nature of the activities in question. When a certain amount of discretion is available, review is limited to an examination of the reasonableness and proportionality of the interference. This holds true for the commercial use of freedom of expression in a field as complex and fluctuating as advertising (see, in particular, Karner , paragraph 51).