Tobacco advertising ban: the issue smoulders on

Date: 21/05/1998

By Ian S Forrester QC

IT WAS disappointing to see the European Parliament confidently moving forward last week to enact a piece of legislation on constitutional grounds which were close to fictional.

The draft directive orders member states to ban the advertising of tobacco products on hoardings and in local newspapers and via sponsorship, not on the grounds that this will advance public health, but because it is necessary to enhance free trade in the common market.

The Community does not have the power to harmonise public health legislation. It does have the power to enhance free trade by directives. The debate is not about whether tobacco advertising should be regulated: it is already in various ways. Rather, it relates to whether European institutions have the competence to compel member states to regulate advertising in a common way.

Ahead of last week's parliamentary vote, a compilation of nine legal opinions appeared: a slim volume of 140 pages. The fact that the publication was commissioned by the cigarette industry was largely outweighed by the firmness of the opinions and the identities of the lawyers in question: two former judges from Luxembourg, ten professors and others with comparably glossy credentials.

The opinions marshal a prodigious number of arguments, some of them too clever to be deeply convincing. But it is hardly surprising that legal pundits found it rather easy to rubbish a proposal which does not seem terribly plausible. Any lawyer relishes the opportunity to disprove the earth is flat, and the experts enjoyed themselves.

The issue is whether Article 100a of the EC treaty is a sound legal basis for the directive: in other words, can dissenting member states be outvoted?

In 1988, member states, frustrated by the slow pace of EC legislation opening up economic opportunities for the free movement of goods and services, agreed they would no longer go at the pace of the slowest and abandoned the need for unanimity. They opted for majority voting on measures to help establish the internal market, “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured”.

The purpose of the tobacco advertising ban is plainly to hinder the sale of such products at national level. How will that enhance the free movement of goods? Many European Court judgements say that national rules on how goods shall be sold are not obstacles to the free movement of goods because they are not intended to regulate trade between member states. How, then, do disparities in the way tobacco is advertised nationally constitute an obstacle to free trade which requires elimination via EC legislation?

Moreover, how does banning advertising facilitate establishment across a frontier and how does a measure banning advertising ease the free rendering of services across a frontier?

Alternatively, if public health is the main goal of the directive, then Article 129 of the treaty is the relevant constitutional justification for Community action. There is a big but, however: Article 129 contemplates only hortatory activity, and forbids the harmonisation of national laws in the field of public health.

Why? Because member states elected not to give the Community institutions such power when they revised the treaty at Maastricht and reconsidered Article 129 at Amsterdam.

So a measure proposed by the Commissioner responsible for health, voted on by health ministers and defended as necessary for the protection of public health, does not primarily concern public health, because a measure harmonising national public health laws would be void.

The truth is that everyone wanted to do something about tobacco smoking: the cause is just, let us not fuss about constitutional niceties. MEPs had to choose between political correctness and concern about protecting public health on one hand and constitutional law on the other. Obviously, the debate would not be so passionate or such fictional grounds for legal action be seriously advanced if the subject were not the banning of tobacco. Does the end justify abusing the constitutional means?

Presumably, a fair number of MEPs, perfectly aware that the Council of Ministers' legal service and the Parliament's own legal affairs committee agreed that the draft legislation was flawed, did not much care.

I would submit that enacting a void law in the expectation that the European Court will kill it off and thereby get the moral obloquy is gesture politics.

The development of Community law has been helped by various doctrines which cross the map of EC jurisprudence. In interpreting Article 85, the Commission has used competition law as a means of achieving economic integration between countries, a world first. Likewise, Article 30 (free movement of goods) has been used as a kind of federalising enzyme, enhancing the common market by condemning local regulations which indirectly hinder cross-border trade. But “effect on trade between member states” is not a magic password excusing proper analysis of reality.

Plainly, a directive forbidding free gifts of cigarettes or the sponsorship of sports has at most “only the ancillary effect of harmonising market conditions” (quoting the European Court). Its main goal is public health. Pretending otherwise is not honest. It is a pity that a law is to be based on a notoriously disingenuous, even fictional basis.

This article reflects the personal views of the author.