Eu: Germany v. European Parliament and Council of the European Union (Tobacco Advertising Directive)

The Advocate General considered the restrictions on freedom of expression and the test of proportionality for such restrictions.

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Germany v. European Parliament and Council of the European Union (Tobacco Advertising Directive)
Case C-376-98 [2000] ECR 1-8419, [2003] 3 CMLR 1175

Theme:	Other Content Restrictions
Sub-Issues:	Commercial Speech; Public health
Test:
Penalty:
Decision:	A ban on tobacco advertising could be justified as a legitimate interference with freedom of expression on public health grounds
Jurisdiction:	European Union (Germany)

Facts:

The Community institutions enacted a directive which prohibited tobacco advertising. All Community legislation must have a legal basis within the Treaty. This directive was based on a number of articles which seek to promote the internal market. The German government brought a judicial review action under Article 230 EC seeking annulment of the directive. The German government argued that the articles specified did not constitute an appropriate legal basis. It further argued that the enactment of the directive constituted an infringement of the principles of proportionality and subsidiarity; breached fundamental rights; infringed the free movement provisions as well as other procedural provisions.

Held:

The applicant argued that for Article 95 to be used as a legal basis, it must actually contribute to the improvement of the internal market, which would not be the case here, in particular because there were few cross border aspects to tobacco advertising. Although a number of Member States disputed this assessment, the ECJ broadly agreed stating that Article 95 did not constitute a general power to regulate trade. There must be more than disparities between national rules to trigger Article 95. On this basis, the ECJ annulled the directive without considering the other arguments. The Advocate-General did, however, discuss the issue of fundamental freedoms, at paras 152 et seq of his Opinion.

The Advocate General began by re-affirming that freedom of expression is protected by Community law. In his opinion, the Advocate-General referred to the jurisprudence of the European Court of Human Rights. As Article 10(1) ECHR (freedom of expression) protects commercial speech such as advertising, so did Community law. The Advocate General noted that a distinction could be drawn between commercial speech and other types of speech in that it does not contribute in the same way to the functioning of democracy and other social goods. Nonetheless:

"...personal rights are recognised as being fundamental in character, not merely because of their instrumental, social functions, but also because they are necessary for the autonomy, dignity and personal development of individuals. Thus, individuals' freedom to promote commercial activities derives not only from their right to engage in economic activities and the general commitment, in the Community context, to a market economy based upon free competition, but also from their inherent entitlement as human beings freely to express and receive views on any topic, including the merits of the goods and the services which they market or purchase." (para 154)

The Advocate-General then noted that freedom of expression was not absolute and may be restricted, inter alia, on the grounds of public health. Nonetheless, in such instances national authorities must show that a restriction is proportionate. In assessing whether restriction is proportionate, the Advocate-General suggested that a stricter standard be used in relation to fundamental rights than is used in relation to assessing the proportionality of Community acts in other contexts. The Advocate-General referred to the tests used by the European Court of Human Rights in this context. Even though stricter than the usual Community test, he noted that there is a lower level of protection given to commercial speech than other forms of speech. In the latter case the test used by the human rights court was that there must be convincing evidence of a pressing social need for the restriction, whereas in the former case, the test would be that the relevant authorities had on reasonable grounds considered the restriction to be necessary. The Advocate-General noted that there were reasons for such a difference, namely the important social interests served by political speech, thus justifying the different approaches. He therefore proposed that a similar approach be adopted within the European Community (para 159).

'In concrete terms, [the Community legislator] should supply coherent evidence that the measure will be effective in achieving the public interest objective involved - in these cases, a reduction in tobacco consumption relative to the level which would otherwise have obtained - and that less restrictive measures would not have been equally effective.' (para 159)

The Advocate General did note, however, that the legislator would not necessarily need to supply empirical studies, but could also rely on evidence of predictions as to how consumers would be likely to act. Indeed, evidentiary requirements may be less strict where public health is at stake. The Advocate General reviewed the evidence provided and concluded that the Community legislator has reasonable grounds for its belief.

As regards the point that the restriction should be no more burdensome than necessary, the Advocate General commented that '[t]he more restrictive the effects, the greater is the onus on the legislator to show that a less burdensome measure would not have sufficed'. (para 164) Here the Advocate-General accepted that limited restrictions on tobacco promotions would be ineffective.

The final stage of the Advocate General's assessment was whether the restriction would be disproportionate to its aims, no matter the fact that less restrictive measures would be ineffective. The public health concern caused by tobacco is significant. Further, tobacco producers remain free to market their product. The Advocate General considered the Open Door Counselling v. Ireland case, decided by the European Court of Human Rights, but distinguished the case for the following reasons. Open Door concerned a total restriction on expression, whereas in the tobacco advertising case certain forms of advertising might still be permissible. Further, Open Door did not concern promotional speech. The Advocate-General did not therefore feel it was necessary to come to the same conclusion in this case as the ECHR court had done in Open Door. The Advocate General concluded that the prohibition on advertising of tobacco products was proportionate, the proposed ban on branded non-tobacco products and services was not proportionate.

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Download the full text of the Advocate General's opinion here.

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