Report 2011 - EFTA Court

encouragement to prohibit, inter alia, the advertising resulting
from the visibility of tobacco products in retail outlets. 38
59. The Defendant points out that the Commission has initiated a
consultation on the revision of the existing legislative instruments
concerning tobacco products. 39 That consultation describes three
options available with regard to access to tobacco products: (1)
no change (Member States remain competent in limiting the
access); (2) controlled supply and access (age verification, access
to vending machines restricted and tobacco display at points of
sale restricted); and (3) ban (cross-border sales via the internet
banned, vending machines banned, vending machines banned
and displays in retail stores banned). Moreover, the consultation
acknowledges that Member States are competent to decide what
option to take, including whether or not to adopt a display ban.
visual display bans in other countries
60. The Defendant emphasises that other countries have implemented
a ban on the visible display of tobacco products. iceland,
ireland, Finland and the United Kingdom have all introduced
visual display bans. These prohibitions share the common
approach of considering the visible display of tobacco products
as advertisement. Therefore, the display ban is considered to be
a natural and integral part of the advertising ban that previously
existed in those countries.
61. According to the Defendant, any reference made by the Plaintiff
to the fact that other states have not implemented a visual
display ban should be considered irrelevant in the present case,
as arguments based on such a reference have no bearing on the
legality of the display ban. As discussed earlier, the competence
to implement a visual display ban lies, according to EU law,
with individual Member States. in addition, references made by
the Plaintiff to Sweden and Denmark are, from the Defendant’s
38 Recommendation 2(a)-(f) in Council Recommendation 2003/54/EC, cited above.
39 The Defendant refers to European Commission, DG SANCO 2010, Possible revision of the
Tobacco Product Directive 2001/37/EC, Public Consultation Document, available at: http://
ec.europa.eu/health/tobacco/docs/tobacco_consultation_en.pdf.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 434 382