Report 2011 - EFTA Court

Court should not interfere unless the measure can be considered
manifestly unreasonable or manifestly inappropriate taking into
account the objective pursued. Therefore, it is for the state to
determine what level of protection is to be achieved. 96 it follows
from this principle that neither the ECJ nor the Court should
enquire whether the benefits to human health deriving from the
contested measure outweigh any detriments.
140. The United Kingdom points out that it has consistently been
held that the health and life of humans are among the foremost
interests to be protected when justifying exceptions to the free
movement of goods. 97 However, in its view, the national legislature
and the Union legislature must be allowed a broad discretion
in the area of public health, entailing political, economic and
social choices and based on complex assessments. Therefore,
the legality of a measure adopted in the sphere of public health
can only be affected if the measure is considered manifestly
inappropriate. As a result, the Court should not interfere with the
assessment of the national legislature unless the visual display
ban is considered manifestly inappropriate. 98
141. in any event, the United Kingdom points out that guidance on
the approach to be taken can be found in Aragonesa. in that
case, it was held, first, that alcohol advertising acted as an
encouragement to consumption and rules restricting advertising
of alcoholic beverages in order to combat alcoholism reflected
public health concerns, and second, in the absence of common
or harmonised rules governing advertising of alcoholic beverages,
that it was at the Member States’ discretion to decide on the
degree of protection as long as the limits set by treaty and the
principle of proportionality were observed. 99 The United Kingdom
96 Case C-262/02 Commission v France, paragraph 24, and Pedicel, both cited above.
97 Reference is made to Deutscher Apothekerverband, cited above.
98 Case C-210/03 Swedish Match [2004] ECR i-11893, paragraphs 47-48.
99 Aragonesa de Publicidad Exterior, cited above, paragraphs 14-18.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 486 408