Federal Republic of Germany v European Parliament and Council of the European Union.

• Jurisdiction: European Union
• Celex Number: 62003CC0380
• ECLI: ECLI:EU:C:2006:392
• Court: Court of Justice (European Union)
• Date: 13 June 2006
• Docket Number: C-380/03
• Procedure Type: Recurso de anulación - infundado

OPINION OF ADVOCATE GENERAL

LÉGER

delivered on 13 June 2006 ¹(1)

Case C-380/03

Federal Republic of Germany

v

European Parliament

and

Council of the European Union

(Directive 2003/33/EC – Advertising and sponsorship in respect of tobacco products – Legal basis – Article 95 EC – Obligation to state reasons – Codecision procedure – Principle of proportionality – Fundamental rights – Freedom of expression)

1. By the present action the Federal Republic of Germany is applying to the Court under Article 230 EC for the partial annulment of Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products. (2)

2. This action is the sequel to proceedings already brought by that Member State against the preceding directive, Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998, whose title is identical, (3) which resulted in the annulment of that directive in its entirety by a judgment of the Court of 5 October 2000 in Case C‑376/98 Germany v Parliament and Council. (4) It was after that judgment had been delivered that Directive 2003/33 (which is at issue in the present action) was adopted. By this fresh action, (5) the Federal Republic of Germany asks the Court to clarify the implications of its case-law regarding choice of legal basis for the adoption of the annulled directive, which was used again for the adoption of the contested directive.

I – Legal framework

3. I will begin by mentioning the provisions of the EC Treaty on which the present action turns. I will then describe the background to the dispute, pointing out the content of Directive 98/43, then the wording of the Court’s judgment by which the directive was annulled. Lastly, I will describe Directive 2003/33, which succeeded that directive and lies at the heart of the present case.

A – The Treaty provisions relied on by the applicant

4. Article 95 EC, which (together with Article 55 EC concerning freedom to provide services) forms the substantive legal basis for the contested directive, provides, in paragraph 1, that ‘save where otherwise provided in this Treaty, … for the achievement of the objectives set out in Article 14 [t]he Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market’. (6)

5. Article 251 EC, to which Article 95(1) EC and Article 47(2) EC (also mentioned by the contested directive) refer, provides for a ‘codecision’ procedure under which the European Parliament is heavily involved in the Council’s decision-making process. Use of this procedure may result in an act being adopted even at first reading. The first indent of the second subparagraph of Article 251(2) EC provides that ‘[t]he Council, acting by a qualified majority after obtaining the opinion of the European Parliament, if it approves all the amendments contained in the European Parliament’s opinion, may adopt the proposed act thus amended’.

6. Under Article 254(1) EC, acts adopted in accordance with the codecision procedure laid down in Article 251 EC must be signed both by the President of the European Parliament and by the President of the Council.

7. Article 152 EC, which comes under Title XIII of the Treaty, entitled ‘Public health’, states, in paragraph 4, first subparagraph, point (c), that ‘[t]he Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall contribute to the achievement of the objectives referred to in this Article through adopting incentive measures designed to protect and improve human health, excluding any harmonisation of the laws and regulations of the Member States’.

B – The annulled directive

8. The annulled directive was adopted on the basis of Article 57(2) of the EC Treaty (now, after amendment, Article 47(2) EC), Article 66 of the EC Treaty (now Article 55 EC) and Article 100a of the EC Treaty (now, after amendment, Article 95 EC).

9. The directive was adopted, according to its first recital, in response to the realisation that ‘there are differences between the Member States’ laws, regulations and administrative provisions on the advertising and sponsorship of tobacco products [and the idea that] such advertising and sponsorship transcend the borders of the Member States and the differences in question are likely to give rise to barriers to the movement between Member States of the products which serve as the media for such advertising and sponsorship and to freedom to provide services in this area, as well as distort competition, thereby impeding the functioning of the internal market’. Faced with that situation, the second recital to the directive provided that ‘those barriers should be eliminated and, to this end, the rules relating to the advertising and sponsoring of tobacco products should be approximated, whilst leaving Member States the possibility of introducing, under certain conditions, such requirements as they consider necessary in order to guarantee the protection of the health of individuals’.

10. In the light of these considerations, Article 3(1) of the annulled directive laid down the principle that ‘all forms of advertising (7) and sponsorship (8) [of tobacco products] shall be banned in the Community’.

11. The obligation on the Member States to comply with that ban was planned over time so as to allow trade practices to be adjusted. (9) As an extension of that ban, Article 3(4) of the annulled directive also prohibited ‘any free distribution having the purpose or the direct or indirect effect of promoting a tobacco product’.

12. However, several forms of promotion of tobacco products fell outside the scope of that directive. This was the case for television advertising (Article 3(1)), (10) communications intended exclusively for professionals in the tobacco trade, advertising in establishments specialising in the sale of tobacco products and advertising inserted in publications which are published and printed in third countries and which are not principally intended for the Community market (Article 3(5), first, third and last indents).

13. In addition, Article 5 of that directive gave the Member States the option to lay down, in accordance with the Treaty, such stricter requirements concerning advertising or sponsorship in respect of tobacco products as they deemed necessary to guarantee the health protection of individuals.

C – The judgment in Case C‑376/98 Germany v Parliament and Council

14. As has already been pointed out, Directive 98/43 (which has just been described) was annulled in its entirety by Case C‑376/98 Germany v Parliament and Council solely on the ground that the choice of Articles 100a, 57(2) and 66 of the Treaty as a legal basis for the directive was incorrect.

15. Since the Court upheld the pleas relied on in this regard by the applicant, the Court did not deem it necessary to consider the other pleas raised by it, (11) concerning respectively a breach of the principles of proportionality and subsidiarity, a breach of fundamental rights, infringements of Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC respectively) and an infringement of Article 190 of the EC Treaty (now, after amendment, Article 253 EC).

16. The Court’s reasoning in concluding that the choice of Articles 100a, 57(2) and 66 of the Treaty as a legal basis for Directive 98/43 was incorrect and that the directive was therefore null and void may be summarised as follows.

17. First of all, it made a point of stating that, whilst the first indent of Article 129(4) of the EC Treaty (now, after amendment, Article 152(4)(c) EC) excludes any harmonisation of laws and regulations of the Member States designed to protect and improve human health, it ‘does not mean that harmonising measures adopted on the basis of other provisions of the Treaty cannot have any impact on the protection of human health’, whilst pointing out that ‘the third paragraph of Article 129(1) [of the Treaty] provides that health requirements are to form a constituent part of the Community’s other policies’. (12) However, according to the Court, the fact remains that ‘other articles of the Treaty [articles other than Article 129 of the Treaty] may not, however, be used as a legal basis in order to circumvent the express exclusion of harmonisation laid down in Article 129(4) of the Treaty’. (13)

18. In the light of these introductory considerations and the principles which must traditionally guide recourse to Articles 100a, 57(2) and 66 of the Treaty, (14) the Court considered whether the choice of those articles as a legal basis for Directive 98/43 was appropriate. To that end it examined whether that directive actually contributed, first, to eliminating obstacles to the free movement of goods and to the freedom to provide services and, secondly, to removing distortions of competition.

19. As regards the objective of eliminating obstacles to the free movement of goods and the freedom to provide services, the Court acknowledged that ‘as a result of disparities between national laws on the advertising of tobacco products, [such] obstacles ... exist or may well arise’, in particular as regards press products, with the result that ‘[i]n principle, therefore, a directive prohibiting the advertising of tobacco products in periodicals, magazines and newspapers could be adopted on the basis of Article 100a of the Treaty with a view to ensuring the free movement of press products, on the...