Report 2011 - EFTA Court

162. The Commission argues that the display ban is both necessary
and proportionate due to the fact that the same level of
protection cannot be achieved by less restrictive means. it was
for Norway to decide that it was necessary to limit the visibility
of tobacco products in addition to the general advertising
ban already in place. in the Commission’s view, the effect of
the display ban in protecting children and adolescents and
supporting those who are attempting to stop consuming tobacco
cannot be achieved by other less restrictive means.
163. Finally, the Commission submits that the exception for dedicated
tobacco boutiques does not prevent the contested legislation from
being justified on public health grounds. The display of tobacco
products in those specialised boutiques cannot be expected to
encourage customers to purchase goods they would otherwise not
buy. That presumption is based on the fact that individuals who
enter such a boutique have decided to buy or are very likely to buy
tobacco products regardless of whether tobacco is displayed.
164. in the light of those observations, the Commission proposes that
the questions should be answered as follows:
1. A general prohibition on the visible display of tobacco products
does not constitute a measure of equivalent effect within the meaning
of Article 11 EEA where no such products are produced within the
territory of the Contracting Party concerned.
2. However, if a general prohibition on the visible display of tobacco
products does constitute a measure of equivalent effect within the
meaning of Article 11 EEA, it is justified on public health grounds
under Article 13 EEA.
Thorgeir Örlygsson
Judge-Rapporteur
CASE E-16/10 Philip Morris Norway xxxxxxxxxxxxxxxxxxxxxxxxxxx AS v The Norwegian State 502 416