Report 2011 - EFTA Court

114. According to the Finnish Government, the contested visual display
ban has as its objective to reduce tobacco use amongst the
population in general and amongst young people in particular. it
is, therefore, based on the public health exception established in
Article 13 EEA. Although public health is a legitimate objective
according to established case-law, for such objective to justify an
obstacle to trade between EEA States it must fulfil a number of
requirements. Thus, the measure must not constitute a means
of arbitrary discrimination or a disguised restriction on trade
between Member States. in addition, the measure must be
appropriate for the attainment of the objective pursued and may
not go further than is necessary.
115. The Finnish Government advances three points within the context
of the public health concerns recognised in Article 13 EEA. First,
the Government is of the view that the public health grounds
on which the Norwegian authorities rely have not been diverted
from their purpose. 82 Second, the Government contends that the
visual display ban has been used neither to discriminate against
products from other Member States nor to protect national
products. Therefore, the ban is an appropriate measure for
securing the attainment of the public health objective pursued.
116. On this point, in particular, the Finnish Government observes
that the ban is designed to limit visibility of tobacco products in
retail outlets with the purpose of effectively decreasing the risk
that children and adolescents will start smoking. in this context,
therefore, when assessing whether the ban is an appropriate
measure for securing the attainment of the public health
objective, according to the Government, it is important to take
account of the fact that the WHO Convention and documents
relating to its implementation authorise and recommend states
to implement a visual display ban. This approach is based on and
supported by scientific evidence. in any event, taking account of
the fact that the ban is not the only measure adopted to reduce
smoking, it is almost impossible to prove the individual effect
82 The Finnish Government refers to Gourmet International, cited above, paragraph 32, and the
case-law cited therein.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 470 400