Consider the significance of the court's judgment in Case C-376/98 'Tobacco Advertising' [2000] ECR I-8419 for the community's legislative powers.

 Firstly in regards to the free movement of goods. Here, the court hinted at the constitutional adequacy of a more limited prohibition of tobacco advertising in written media, following the model of Directive 89/552, which prohibits television advertising. But it considers that the sheer prohibition of tobacco advertising in certain goods (like posters, beer mats, ashtrays, etc…) cannot be seen as a measure intended to facilitate trade of the products concerned, thus the court regarded this as a public health measure. Secondly, regarding the elimination of distortion of competition (which is the Parliament claimed was the real issue at stake) the Court simply says that an outright prohibition of advertising and sponsorship is disproportionate. The Court was therefore not convinced of any of the two fundamental points of Article 95 and thus, the ECJ, annulled the decision.

         

At first one can see that there are three major limits on the use of Article 95 emerging from the Tobacco Advertising case. This case states that distortions of competition caused by differences in national legislation must be appreciable in order to justify its use. That legislation adopted under Article 95 must contribute to the elimination of obstacles to free movement within the internal market. And finally that Article 95 cannot be used to circumvent the limits on other Treaty provisions. The requirement that a distortion of competition should be appreciable in order to justify Community internal market legislation may be contrasted with the fact that for more than 30 years it has been apparent that a national measure does not have to have an appreciable effect on trade in order to be regarded as an unlawful barrier to trade. The ‘Tobacco Advertising’ judgment appears thus to add to the disagreement between the circumstances under which a national measure will be regarded as constituting an unlawful barrier to trade and the circumstances under which the Community has the power, to remove or replace such measures with EC legislation.

On the broader issue of competence, and in particular whether the Directive was justified as a method of eliminating distortions of competition, the Court stated that it should verify whether the distortion of competition which the measure purported to eliminate was appreciable, citing its decision in Titanium Dioxide. Here the institution relied exclusively on the internal market as a legal basis. Despite its quite obvious concerns with public health, it was not and could not have been put forward as a health measure as there was no applicable general legal basis under which it could have been enacted.

 The Court did nevertheless accept that the differences between certain regulations on tobacco advertising might give rise to appreciable distortions of competition.

In the decision for the ‘Tobacco Advertising’ case: rather than replacing disparate national legislation with common Community rules, the Directive introduced Community rules which allowed some of the disparate national rules to continue to exist, without the concomitant benefit of allowing free circulation for products or activities which met the Community rules. However, the rather sweeping general comments about not using Article 95 to ban an activity do raise the general issue about whether that provision can

be used to replace a legitimate national prohibition.

The legislative powers the Community may exercise are regulated by the rules bestowed on it by the various Treaties. These rules were themselves set up by the member states (rules that came from their different constitutional traditions) and given for the community to apply. This means that whatever the approach the member state in question has towards the community it is always restricted by the Treaties, as it is the Treaties that dictate the range of the member states' powers. But who is to decide whether one member state has abused its power? This arbitrary role is given to the European court of Justice, this body is there to prove that the community does not possess universal legislative power. Article 5 of the Treaty of the Maastricht Treaty states:

"The Community shall act within the limits of the powers conferred upon it by this Treaty and the objectives assigned to it therein."

        These various points are important to take into consideration when considering 'Tobacco Advertising' as these provide the basis for understanding the hierarchy within the European Union and establish why the directive was annulled.

        The ‘Tobacco Advertising’ case, as I mentioned before, was largely motivated  by the objective of reducing consumption of tobacco and thus improving the health of Community citizens, it was not and could not have been put forward as a health measure as there was no applicable general legal basis under which it could have enacted. The Court therefore tried to figure out whether the measure could be justified at all on the basis that it was adopted in pursuit of an internal market objective. This notion of an internal market is concerned with the freedom of trade in goods and services. The Community is attributed a number of ‘duties’ by Article 3 which include:

‘(c) an internal market characterized by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;

…

(g) a system ensuring that competition in the internal market is not distorted.’  

This basically refers to the abolition of tolls to facilitate trade within the European Union, and ensures that the competition within these borders are regulated. This will become relevant in respect to ‘Tobacco Advertising’ as the case did cause somewhat of an obstacle to the free movement of goods within the European Union.

The internal market is defined further in Article 14(2) as:

‘The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.’

 Again, this article stresses on the free movement of goods within the European Union and thus emphasises the importance of the ‘Tobacco Advertising’ case. If this case was indeed passed by the Council you would have a violation of this article, however, if not passed would mean that a health measure was denied. This case is important because of the dilemma it managed to put the court in, and although one might think that the Community had no right in presenting a health case in relation to the internal market the fact that people’s ‘lives’ (or rather lungs) were put against the right to free trade with no proper source of alternative leads us to believe that there are still slight failures in relation to these procedures.

        The competence of the Community against that of the Member states arose in a rather distinct form in ‘Tobacco Advertising’ because of certain other Treaty provisions. The main argument the case actually revolved upon was whether the directive was aimed at the pursuit of a health rather than an internal market objective (as mentioned above). If it was, then was the Community able to legislate on health matters?

        The Communities’ power to act is very limited, even if it can be qualified by a majority it would still be limited to:

1. ‘Measures setting high standards of quality and safety of organs and substance of human origin, blood and blood derivatives….
2. Incentive measures designed to protect and improve human health, excluding any harmonization of the laws and regulations of the Member States.’

As one can see these provisions are largely ‘ineffective’, whilst health is there as an aspiration the execution is left to be desired.         The ‘Tobacco Advertising’ case didn’t use all its potential either. The claimants might have been succesfull in a procedure for the right of free speech, or freedom of expression.

The next question one might turn to is the question of subsidiarity. This matter was debated extensively in the case, but the court didn’t have to reach that issue. The conclusion was that it could not apply. It appears most likely, therefore, that wherever health protection is genuinely secondary to the interests of the internal market, subsidiarity has no role to play in this case. Subsidiarity would apply, however, in the light of article 152, when dealing with action taken in the light of substantive health competence.

In relation to the ‘no circumvention rule’, which sites that one cannot lawfully use other Treaty bases to circumvent the restriction on harmonisation in Article 152 (4) EC (Para 79). However, while tobacco may be an agricultural product, it would probably be pushing things too far to argue that control of its effects on human health constituted a measure in the ‘phytosanitary’ field which had as its direct objective the protection of public health. It has long been established that a general power cannot be used to regulate a matter falling clearly within the domain of a more specific provision, so that the general Article 308 could not be used to enact legislation falling within the reach of the common commercial policy under Article 133, and general powers cannot be used to evade the detailed requirements of a more specific power.

         In conclusion one may notice that it is the constant task of the court to strike the correct balance between respect for the legislative role and judicial control to ensure that the Community does not exceed its powers at the expense of the Member States.

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