• Annulment of directives, the principle of proportionality, imposed regulations and EU law power over Member States

Facts of the Case

  • A previous directive, focused on the advertising and sponsors of tobacco products during press and sports events, was replaced by a new one after the German government asked for its annulment.
  • In this case, the German government again brought an action for annulment; this time against the new directive, which was narrower.


  • Were the provisions in opposition of Article 95 EC – allowing other Member States to interfere with another’s products through discrimination of international taxation, charging different rates and conditions?
  • Was the new directive narrow with its provisions, is it incompetent as the German government claimed?
  • Had the directive gone too far, offending the principle of proportionality? Here, this would require the provisions set by the European Parliament and Council went beyond what is deemed necessary for the intended aims.

Held by The European Court of Justice

  • Dismissed the action brought by Germany, finding the directive to not be narrow and a valid replacement.

Findings of the Court

Article 95 EC

  • This article protects the guarantee to one’s health, “Community legislature cannot be prevented from relying on the legal basis on the ground that public health protection is a decisive factor in the choices made” [92]. The directive in question focuses on that with its restrictions on tobacco advertising.
  • If the provisions mean that Member States may have to bring in measures to either have the ability to authorise the sale of such products, or to prohibit sale then that is an allowed discretion

Breach of duty of stating reasons

  • “the preamble to the Directive states that an appreciable risk exists of obstacles to free movement in the internal market as a result of Member States’ laws, regulations and administrative provisions and that, in order to ensure free circulation throughout the internal market for all such media, it is necessary to limit tobacco advertising therein to those magazines and periodicals which are not intended for the general public such as publications intended exclusively for professionals in the tobacco trade and to publications printed and published in third countries that are not principally intended for the Community market.” [111]
  • The purpose of the directive is to “prevent circumvention of the restrictions placed on direct forms of advertising.” [113] and such was stated in the preamble

Principle of proportionality

  • “means employed by a Community provision to be appropriate for attaining the objective pursued and not to go beyond what is necessary to achieve it” [144]
  • “the Community legislature must be allowed a broad discretion in an area such as that involved in the present case, which entails political, economic and social choices on its part” [145]
  • The directive in question can be seen as appropriate to achieve the intended objective, not going beyond what is deemed necessary – it “does not cover publications intended for professionals in the tobacco trade or published in third countries and not intended principally for the Community market” [148]

Editorial comment

From this case, it can be suggested that EU directives have wide discretionary powers in certain areas. These powers can place bans in markets against publication of their products in areas young people may see.