Report 2011 - EFTA Court

market in that regard. 93 The United Kingdom argues that social
practices and local habits are not relevant to the consumption of
tobacco products.
136. The United Kingdom emphasises that the visual display ban
regulates the behaviour of all retail outlets and applies to all
tobacco products. Therefore, as Article 11 EEA does not apply to
legislation which restricts distribution by prohibiting advertising
and affects all traders in the distribution sector in the same
manner, 94 the visual display ban does not come within the scope
of Article 11 EEA.
137. Moreover, the United Kingdom argues that Article 11 EEA does
not apply to national legislation (i) which makes no distinction
according to the origin of the goods to which it applies; (ii) whose
purpose is not to regulate trade in goods with other Member
States; and (iii) whose restrictive effects on the movement of
goods are too uncertain and indirect for the obligation which it
lays down to be regarded as being of a nature to hinder trade
between Member States. 95 The United Kingdom argues that the
contested visual display ban fulfils these criteria.
The second question
138. The United Kingdom supports the position of the Defendant,
namely, that it suffices, having regard to all available sources, that
there are reasonable grounds to assume that the prohibition of
tobacco displays will further its objectives. in addition, the United
Kingdom concurs with the Defendant’s submission that it falls to
the national court to decide on the suitability of the visual display
ban.
139. With regard to the correct approach to be taken in assessing the
suitability and necessity of tobacco control measures sought to
be justified on public health grounds under Article 13 EEA, the
United Kingdom submits that a state’s discretion is broad and the
93 Reference is made to Gourmet International, cited above, paragraph 21.
94 Reference is made to Leclerc-Siplec and Keck and Mithouard, both cited above.
95 The United Kingdom refers to Case C-372/92 Peralta [1994] ECR i-3453, paragraph 23.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 484 407