Report 2011 - EFTA Court

16. Notwithstanding the importance of measures that actually restrict
free movement of goods, the Plaintiff emphasises the need to go
further. Thus, the potential effects of the legislation in question
are also relevant. The Plaintiff submits that if the legislation
is capable of having restrictive effects, it must be regarded as
having an effect equivalent to a quantitative restriction. 4
Discriminatory Measures
17. The Plaintiff argues that national legislation that restricts or
prohibits certain selling arrangements is not, as such, a direct
or indirect hindrance to trade between Member States, if the
legislation applies to all relevant traders and it affects the
marketing of domestic products and imported products in the
same manner. 5 However, in the Plaintiff’s view, a total advertising
ban is considered to constitute a per se restriction on the free
movement of goods in EU law. 6 Further, according to established
case-law, a total ban on the advertising of alcoholic products
may be considered a restriction on the free movement of goods,
without any need for an analysis of the factual effects of such a
ban on a particular market. 7 in addition, the Plaintiff submits that
a total advertising ban, as prescribed by national law, is liable
to favour domestic products over imported products because
consumers tend to be more familiar with domestic products than
imported ones. 8
18. The Plaintiff contends that the absence of tobacco production in
Norway does not alter that the ban on visual display of tobacco
4 The Plaintiff refers to Case C-184/96 Commission v France [1998] ECR i-6197, paragraph
17, Joined Cases 177/82 and 178/82 Van de Haar [1984] ECR 1797, paragraph 13, and
Case 120/78 Rewe-Zentral (Cassis de Dijon) [1979] ECR 649.
5 The Plaintiff refers to Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993]
ECR i-6097, paragraph 16.
6 The Plaintiff refers to the Opinion of Advocate General Jacobs in Case C-412/93 Leclerc-
Siplec [1995] ECR i-179, point 50.
7 Case C-405/98 Gourmet International [2001] ECR i-1795, paragraphs 18, 20 and 21, and
Case C-239/02 Douwe Egberts [2004] ECR i-7007, paragraphs 53-54.
8 The Plaintiff refers to Douwe Egberts, cited above, paragraph 53.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 406 368