Report 2011 - EFTA Court

or analysis of the appropriateness and proportionality of the
measure adopted. 91
126. The Portuguese Government takes the view that although reducing
smoking constitutes a legitimate objective, no evidence can be
found that supports the notion that a visual display ban reduces
smoking. The lack of such evidence is important when it comes to
deciding whether the ban is proportionate. in its view, the criteria
relevant for determining whether a ban is proportionate are: (i)
whether a state has demonstrated that the ban reduces smoking
prevalence; (ii) whether the state has considered the effects of
bans implemented in other countries; (iii) whether the state has
considered potential adverse effects of the ban on competition
and illicit trade; and (iv) whether the state has demonstrated that
no alternative less restrictive means of achieving its objective of
reducing smoking are available.
127. The Portuguese Government asserts that a visual display ban will
have an adverse affect. it will drive consumers to the illicit market;
a phenomenon which has already become troublesome in Europe.
illicit tobacco products are cheaper than legitimate products
and can lead to an increase in consumption that will undermine
efforts to keep children and adolescents from smoking. in
addition, the Government notes, a display ban might severely
restrict brand competition in favour of price competition. That
distortion of competition could lead to lower prices and increased
consumption in the long run.
128. Finally, the Portuguese Government stresses that a total visual
ban infringes the right to freedom of expression, as it restricts the
possibility to exploit a trademark as a characteristic of products
offered for sale or otherwise disseminated in business activity.
Moreover, a total visual ban will interfere with the freedom to
engage in commercial activity.
129. in the light of the above analysis, the Portuguese Government
proposes that the Court should answer the questions as follows:
91 Reference is made to Commission v Belgium, cited above, paragraph 36.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 478 404