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

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61998J0376 European Court reports 2000 Page I-08419 17 adopt Council Directive 89/428/EEC of 21 June 1989 on procedures for harmonising the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry (OJ 1989 L 201, p. 56). 110 It is true that the differences between certain regulations on tobacco advertising may give rise to appreciable distortions of competition. As the Commission and the Finnish and United Kingdom Governments have submitted, the fact that sponsorship is prohibited in some Member States and authorised in others gives rise, in particular, to certain sports events being relocated, with considerable repercussions on the conditions of competition for undertakings associated with such events. 111 However, such distortions, which could be a basis for recourse to Article 100a of the Treaty in order to prohibit certain forms of sponsorship, are not such as to justify the use of that legal basis for an outright prohibition of advertising of the kind imposed by the Directive. 112 Second, as regards distortions of competition in the market for tobacco products, irrespective of the applicant's contention that such distortions are not covered by the Directive, it is clear that, in that sector, the Directive is likewise not apt to eliminate appreciable distortions of competition. 113 Admittedly, as the Commission has stated, producers and sellers of tobacco products are obliged to resort to price competition to influence their market share in Member States which have restrictive legislation. However, that does not constitute a distortion of competition but rather a restriction of forms of competition which applies to all economic operators in those Member States. By imposing a wide-ranging prohibition on the advertising of tobacco products, the Directive would in the future generalise that restriction of forms of competition by limiting, in all the Member States, the means available for economic operators to enter or remain in the market. 114 In those circumstances, it must be held that the Community legislature cannot rely on the need to eliminate distortions of competition, either in the advertising sector or in the tobacco products sector, in order to adopt the Directive on the basis of Articles 100a, 57(2) and 66 of the Treaty. 115 In view of all the foregoing considerations, a measure such as the directive cannot be adopted on the basis of Articles 100a, 57(2) and 66 of the Treaty. 116 In those circumstances, the pleas alleging that Articles 100a, 57(2) and 66 do not constitute an appropriate legal basis for the Directive must be upheld. 117 As has been observed in paragraphs 98 and 111 of this judgment, a directive prohibiting certain forms of advertising and sponsorship of tobacco products could have been adopted on the basis of Article 100a of the Treaty. However, given the general nature of the prohibition of advertising and sponsorship of tobacco products laid down by the Directive, partial annulment of the Directive would entail amendment by the Court of provisions of the Directive. Such amendments are a matter for the Community legislature. It is not therefore possible for the Court to annul the Directive partially. 118 Since the Court has upheld the pleas alleging that the choice of Articles 100a, 57(2) and 66 as a legal basis was inappropriate, it is unnecessary to consider the other pleas put forward by the applicant. The Directive must be annulled in its entirety. DOCNUM 61998J0376 AUTHOR Court of Justice of the European Communities © An extract from a JUSTIS database 270
61998J0376 European Court reports 2000 Page I-08419 18 FORM Judgment TREATY European Economic Community TYPDOC 6 ; CJUS ; cases ; 1998 ; J ; judgment PUBREF European Court reports 2000 Page I-08419 DOC 2000/10/05 LODGED 1998/10/19 JURCIT 31989L0428 : N 109 31989L0552-A13 : N 98 31989L0622-A08P1 : N 104 61989J0300-N23 : N 106 31990L0239-A07P1 : N 104 11992E003-LC : N 82 11992E003B : N 83 11992E007A : N 82 11992E057-P2 : N 80 87 - 89 100 105 107 114 - 116 118 11992E066 : N 80 87 - 89 100 105 106 114 - 116 118 11992E100A-P1 : N 81 83 11992E100A-P3 : N 88 11992E100A : N 80 84 - 86 88 89 98 100 105 - 107 111 114 - 118 11992E129-P1L3 : N 78 88 11992E129-P4 : N 79 11992E129-P4T1 : N 77 11992E164 : N 84 11992E189B : N 81 61992J0350-N25-41 : N 85 61992J0350-N35 : N 86 61994J0233-N10-21 : N 85 31998L0043-A03P1 : N 99 31998L0043-A03P2 : N 93 102 31998L0043-A03P3LA : N 93 31998L0043-A03P4 : N 92 31998L0043-A03P5 : N 92 31998L0043-A05 : N 94 103 31998L0043 : N 76 108 CONCERNS Declares void 31998L0043 SUB Principles, objectives and tasks of the Treaties ; Free movement of goods ; Quantitative restrictions ; Measures having equivalent effect ; Freedom of establishment and services ; Free movement of services ; Approximation of laws AUTLANG German APPLICA Federal Republic of Germany ; Member States DEFENDA Council ; European Parliament ; Institutions © An extract from a JUSTIS database 271
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