On 5 October, the European Court of Justice (ECJ) took the unusual step of annulling the EC directive (98/43/EC) concerning the advertising and sponsorship of tobacco products. The ECJ’s decision is likely to be extremely important for advertising in other market sectors and also has significant constitutional implications concerning the extent of the powers of the European Union institutions.
The tobacco advertising directive
Before its adoption in July 1998, the tobacco advertising directive had a long history. A first draft was proposed by the European Commission in 1989 and provided for a ban on tobacco advertisements in publications intended for people aged under 18. It also set out specific requirements for the form and content of advertisements in the press, as well as in bills and posters.
During the course of the European legislative process, a number of further drafts were proposed in which there was a dramatic shift from its original form to a measure entirely concerned with the regulation of public health. The directive as adopted required all member states to introduce a virtually complete ban on the advertising of tobacco products and sponsorship activities by tobacco companies. The timetable for implementation of the provisions of the directive was as follows:
lBy July 2001 – ban on advertising except in print
media.
lBy July 2002 – ban on advertising in print media.
lBy July 2003 – ban on tobacco sponsorship of
all events not organised on a worldwide basis.
lBy 1 October, 2006 – ban on sponsorship of
events organised at a world level such as snooker and Formula One racing.
The ECJ’s judgment striking down the directive followed a hearing in Luxembourg in April of two cases. The first of these was brought by the German government under Article 173 (now Article 230) of the EC Treaty. The second was started by the four principal UK tobacco manufacturers, Imperial Tobacco, Gallaher, Rothmans and British American Tobacco, in the English High Court and was referred to the ECJ under Article 177 (now Article 234) of the EC Treaty.
For the UK tobacco companies, the ECJ’s decision has marked the end of a two-year campaign which has involved not only proceedings to the ECJ in Luxembourg, but also interim proceedings in the English courts that resulted in the companies obtaining an injunction against the Crown and which took them to the House of Lords.
The tobacco companies’ challenge to the directive was brought in the English court because the companies did not have the prerequisite degree of “direct and individual concern” to bring proceedings directly to the ECJ under Article 173. They started judicial review proceedings and, in the absence of the UK implementing legislation, took the unprecedented step of challenging the UK government’s intention and/or obligation to give effect to the requirements of the directive.
The companies sought a declaration that the Government’s intention/obligation to implement the directive was illegal on the basis that the directive itself was illegal. As national courts are not empowered to decide on the validity of Community Acts, the companies specifically requested the English court to refer the question of the validity of the directive to the ECJ.
