Case C-380/03, Germany v. Parliament and Council (Opinion)

AG Léger yesterday argued that the new Tobacco Advertising Directive was correctly based on Article 95

Another act in the Tobacco Advertising drama, although it seems to be coming to an end now. After the seminal Tobacco Advertising case of 2000, in which the Court annulled Directive 98/43/EC, the Council adopted another Directive on Tobacco Advertising - Directive 2003/33/EC - which is the subject of the present dispute.

Germany submits that Articles 3 and 4 of the Directive, which lay down a prohibition of all forms of advertising and sponsorship of tobacco products in the Community, should be annulled, again arguing that Article 95 cannot be used as legal basis for such prohibition.

The Advocate General yesterday dismissed this claim on the following grounds.

The Advocate General first of all argued that when the contested directive was adopted there remained significant differences between the Member States’ rules on tobacco advertising.

These differences were far from being eliminated and would inevitably have had the effect of impeding not only the free movement of goods, but also the freedom to provide services.

He furthermore argued that Articles 3 and 4 of the Directive genuinely have as their objective the elimination or the prevention of such obstacles.

Referring to Österreichischer Rundfunk and Lindqvist, he argued that recourse to Article 95 of the Treaty as legal basis does not presuppose the existence of an actual link with free movement between the Member States in every situation referred to by the measure founded on that 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.

The Advocate General argued that these considerations also apply to Directive 2003/33/EC

Therefore, Directive 2003/33/EC was correctly adopted on the legal basis of Article 95 EC.

Although the Court has been stringent on the use of Article 95 as legal basis
lately, the Court will probably follow the Opinion of the Advocate General in this case.

Text of Opinion

Relevant case law (selection):

Case C‑376/98 Germany v Parliament and Council, [2000] ECR I‑8419 (Tobacco Advertising)

Joined Cases C‑465/00, C‑138/01 and C‑139/01, Österreichischer Rundfunk and Others, [2003] ECR I‑4989