The Advocate General considers that the Community legislator was not competent to enact the Directive on the legal basis cited.
On 6 July 1998, a European Parliament and Council Directive was adopted concerning the advertising and sponsorship of tobacco products within the European Union. This Directive provides for a wide-ranging prohibition of advertising of tobacco products and of sponsorship on behalf of tobacco products. The Directive was adopted to pursue the internal-market objective of the Treaty, by harmonising national laws which hinder trade in the Community. Differences in national rules were said to hinder trade in products and services used in tobacco advertising and sponsorship.
Both cases concern the validity of this Directive under Community law. In the first case, Germany has brought proceedings before the Court of Justice for the annulment of the Directive. In the second case, a number of tobacco manufacturers (Imperial Tobacco and Others) brought proceedings in the United Kingdom for judicial review. The national court referred a question to the Court of Justice regarding the validity of the Directive.
According to Germany and the tobacco companies, the Community legislator has exceeded its powers by adopting the Directive. The two principal arguments relied upon are firstly that the Directive is in reality a measure for the protection of public health whose effect on the internal market, if any, is merely incidental, and secondly, that the Directive is not in any event a valid internal-market measure.
Advocate General Fennelly considers that the central issue is whether the internal market constitutes on its own a sustainable legal basis for the Directive. In his view, if this condition is satisfied, the fact that the Directive seeks simultaneously to protect public health is not relevant to its validity.
The Advocate General considers that the ban on tobacco advertising and sponsorship in the Directive can be described as comprehensive; it prohibits all consumer-oriented advertising by Community operators away from the point of sale. He then assesses the benefits of the Directive to the internal market. He considers that the sole effect of the Directive is to prohibit trade in goods and services to which it relates. According to the Advocate General, under Community law, a measure whose sole effect is to prohibit an economic activity cannot remove barriers to trade which affect that activity.
Consequently, as the advertising ban cannot be said to advance the interests of the internal market, Advocate General Fennelly concludes that the Community was not competent to enact it on the basis of the Treaty provisions cited. He proposes, therefore, that the Court annul the Directive.
The Role of the Advocate General
It is the duty of the Advocate General to assist the Court of Justice by delivering reasoned Opinions containing a proposal as to the way in which the Court of Justice should, in his view, resolve the case before it. The Advocate General acts with complete impartiality and independence; the Court of Justice is not bound by the Advocate General's Opinion.
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