Report 2011 - EFTA Court

156. On the question of whether or not less restrictive measures exist,
ESA refers to the main purpose of the visual display ban, namely,
to prevent customers of a particular retail outlet being faced with
tobacco products, a situation that might incite such customers
to make an impulse purchase of tobacco. in ESA’s view, the
alternative and allegedly less restrictive measures referred to
by the Plaintiff would not achieve the same level of protection,
as these alternatives are mainly aimed at discouraging young
people from smoking. Assuming that the aim of the measure is
legitimate, ESA cannot see what other less restrictive measures
might be applied.
157. in light of those considerations, ESA proposes that the questions
referred by the Oslo District Court should be answered as follows:
Article 11 EEA does not preclude national measures such as a
prohibition on the display of tobacco products which constitutes
a selling arrangement which does not lead to discriminatory
treatment between domestic products and products imported from
other Contracting States. In any event, if such measures were to be
considered to be measures having an equivalent effect, they would fall
within the public health exception.
The European Commission
The first question
158. According to the European Commission (“the Commission”), a
ban on the display of a product can be regarded as an advertising
ban in a more radical form. Therefore, case-law dealing with
advertising restrictions is of direct relevance in the present
case. Moreover, the Commission argues that a display ban must
be regarded, in the same way as an advertising restriction,
as a selling arrangement. Therefore, if no de jure or de facto
discrimination can be found, it falls outside the scope of Article
34 TFEU and Article 11 EEA. 114
114 The Commission refers to Keck and Mithouard, cited above, paragraph 16.
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 498 414