Report 2011 - EFTA Court

efficient measures do not exist; the alternative measures referred
to by the Plaintiff would neither close the gap left by the tobacco
advertising ban nor contribute to denormalise tobacco use.
According to the Defendant, it is particularly crucial to close the
final gap in the ban on tobacco advertising. For this reason alone,
the display ban must be considered necessary.
100. in addition, the Defendant observes that some of the measures
referred to by the Plaintiff, e.g. mass media campaigns, are
supplements but not alternatives to the display ban. All the
measures implemented by the Defendant form part of an existing
tobacco policy. The need for a comprehensive and diversified
tobacco control policy is of the utmost importance in countering
the adverse effect of tobacco use on public health. Therefore,
in its view, it is not a question of choosing between age control
and a display ban, but whether age control and the display ban
together are more effective than age control alone. Hence, the
joint effect of several measures will lead to greater protection for
public health.
101. The Defendant contends that measures similar to the display ban,
only less comprehensive, must be assumed to be less effective.
This applies to regulations relating to the maximum space for
displaying tobacco products or limited visibility of such products.
The Defendant argues that a total ban on displaying tobacco
products is more effective than any such partial bans. in addition,
it queries whether some of the alternative measures, e.g. a
licensing system for retail sellers, would, in fact, be less restrictive
to the tobacco trade than the current visual display ban.
102. Therefore, the Defendant submits that the display ban must be
considered necessary and that other less restrictive measures
would not be as effective in achieving the legitimate objective
of protecting public health. in any event, it continues, it is for
the national court to apply the necessity test, including the
assessment of whether it is apparent de facto and de jure that the
protection of public health against the harmful effects of tobacco
use can be secured equally effectively by measures having less
effect on intra-EEA trade.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 462 396