Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

61998J0376 European Court reports 2000 Page I-08419 12
but also in the tobacco products market, by harmonising the conditions under which manufacturers may
promote their products. It also harmonises the conditions under which cultural and sports events can be
sponsored by the tobacco industry.
64 Professional sports teams are undertakings competing with each other, and the conditions of such
competition would be affected if teams in different Member States could not receive the same subsidies
from the tobacco industry, which is particularly willing to sponsor sports events in order to counteract the
association of those products with bad health.
65 The Court has held that a measure may be adopted with a view to anticipating the adoption of
disparate national rules involving serious obstacles to trade. The present situation of tolerating publications
which contain tobacco advertising may change in view of the evolution of national regulations, which are
becoming more strict. There is, therefore, a risk of increased obstacles to trade which the Directive is
intended to eliminate.
66 With regard to the applicant's argument that recourse to Article 100a of the Treaty should be possible
only where there are appreciable restrictions on the exercise of fundamental freedoms or appreciable
distortion of competition, the United Kingdom Government observes that no specific criterion is capable of
being used to draw such a distinction.
67 It emphasises that its suggested interpretation of Article 100a is confirmed by the case-law of the Court
according to which a directive which confines itself to prohibiting certain activities with a view to
eliminating distortion of competition may be adopted on the basis of that article (Titanium Dioxide, cited
above).
68 The French Government considers that the Directive was validly adopted on the basis of Article 100a
of the Treaty. It bases that view on arguments drawn from legislative precedents relating to harmonisation
in the area of public health, the case-law of the Court on Article 129 of the Treaty and, finally, the legal
basis chosen for new harmonising measures now in the process of being adopted.
69 As legislative precedents, it refers to the directives on pharmaceutical products, from Council Directive
65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or
administrative action relating to proprietary medicinal products (OJ, English Special Edition 1965-66, p.
20) to Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of
genetically modified organisms (OJ 1990 L 117, p. 15) and Council Directive 76/768/EEC of 27 July 1976
on the approximation of the laws of the Member States relating to cosmetic products (OJ 1976 L 262, p.
169). In those directives, the aims of public health protection co-exist with the objective of free movement
of products and the removal of distortion of competition, and the validity of the provisions thereof which
harmonise national laws on public health has not been challenged.
70 As regards the case-law of the Court on Article 129 of the Treaty, the French Government cites Case
C-180/96 United Kingdom v Commission [1998] ECR I-2265 and Case C-269/97 Commission v Council
[2000] ECR I-2257, in which the Court made it clear that human health protection requirements are a
constituent part of other Community policies, in particular the internal market policy.
71 Finally, the legal basis of the proposal for a directive on the approximation of provisions laid down by
law, regulation or administrative action relating to the manufacture, sale and presentation of tobacco
products is Article 100a of the Treaty. Moreover, negotiations have been started under the auspices of the
World Health Organisation with a view inter alia to concluding a protocol on the advertising of tobacco
products. The legal basis of the authority vested in the Commission to participate in those negotiations is
Article 228 of the EC Treaty (now, after amendment, Article 300 EC).
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