Report 2011 - EFTA Court

tobacco. These consequences and their effects on legitimate
tobacco trade have not been recognised by the Defendant.
42. The Plaintiff argues that the Defendant has failed to show that
the alleged benefits of the visual display ban are not offset by
an increase in illicit trade. According to the Plaintiff, one of the
negative effects of visual display bans is the fact that cheaper
unregulated tobacco products become more accessible to young
smokers. Therefore, public health initiatives to curb tobacco
consumption are undermined as cheap tobacco products are sold
to adolescents in an unregulated environment.
Criteria for necessity
Obligation to examine less restrictive measures
43. The Plaintiff stresses that the Court should provide guidance on
what the burden of justification on the Defendant entails. That
is, according to the Plaintiff, the Defendant must demonstrate
that the benefits from a display ban cannot be met through
alternative measures less restrictive of trade. This is of particular
importance as the Defendant has acknowledged that other
methods of reducing tobacco consumption exist. Therefore, so
the Plaintiff argues, the state is under an obligation to examine
the possibility of using measures less restrictive of the free
movement of tobacco products. 26
44. The Plaintiff submits that less restrictive measures could consist
in regulations limiting the size of retail displays, effective
enforcement of existing age restrictions and retail licensing. it
contends, however, that such measures have either not been
adopted or are unenforced by the Defendant.
26 The Plaintiff refers to Case C-320/03 Commission v Austria [2005] ECR i-9871, paragraph
87, the Opinion of Advocate General Kokott in Case C-198/08 Commission v Austria, not
yet reported, points 61, 62 and 64, and Case C-216/98 Commission v Greece [2000] ECR
i-8921, paragraphs 30-33.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 422 376