Friday, May 4, 2012

Germany v. Parliament and Council (Tobacco Advertising I) case brief

Germany v. Parliament and Council (Tobacco Advertising I)
Also see: Tobacco Advertising II.

-Advertising and sponsorship regulations of tobacco products being challenged.
-Directive basically banned all advertising and sponsorship of tobacco products in the EU.
TFEU 168: (public health) excluded harmonization of member state laws designed to protect and improve human health.
Issue:  Was Article 95 the proper legal basis?
Holding: here the ban went too far, was ok for magazines, not ok for posters, ashtrays, and parasols. ANALYSIS -In considering whether 95 was the proper legal basis, the court must verify whether the measure whose validity is at issue in fact pursues the objectives stated by the Community legislature (here: free movement of goods, freedom to provide services, and removing distortions of competition).
Recourse to article 95 as a legal basis is possible IF the AIM is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws.  However, the emergence of such obstacles MUST be likely and the measure in question must be designed to prevent them.
-Court says that prohibition can be adopted on basis of 95 of advertising tobacco products in periodicals, magazines and newspapers.
-Can NOT be used to prohibit advertisements on posters, parasols, ashtrays, etc., which in no way help to facilitate trade in the products concerned.

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