* Melissa Alegre is an Executive Editor of the Boston College International & Comparative Law Review.
1 Luk Joossens, Questions and Answers: Why Ban Tobacco Advertising in the European Union?, GLOBALink Resources on Tobacco Control (Feb. 1998), at http://www.globalink. org/tobacco/docs/eu-docs/9802faq.htm (citing R. West, Withdrawing Respect from the Tobacco Trade, 92(2) Addiction 133, 133–35 (1997)) [hereinafter Questions and Answers].
2 See id.
3 See id.
4 See id.
5 Press Release, Tobacco Manufacturers’ Association, Tobacco Companies Challenge EC Advertising Ban (Sept. 22, 1998), available at http://www.thetma.org.uk/press_releases/220998.htm [hereinafter Press Release].
6 Id.
7 See e.g., ASH, Tobacco Policy in the European Union: Fact Sheet No. 20 (last modified Jan. 2002), at http://www.ash.org.uk/factsheets/html/fact20.html [hereinafter Tobacco Fact Sheet]; Proposal for a Directive of the European Parliament and of the Council on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Relating to the Advertising and Sponsorship of Tobacco Products, COM (2001) 283 (a proposal for a new directive to replace Directive 98/43/EC), at http://europa.eu.int/eur-lex/en/com/pdf/2001/en_501PC0283.pdf [hereinafter Proposed Directive].
8 Tobacco Fact Sheet, supra note 7 (citing J.F. Ryan, Tobacco Control Issues in the European Union, 6(1) Eurohealth 5, 5 (2000), available at http://www.who.dk/document/OBS/ EuroHealth6_1.pdf).
9 Proposed Directive, supra note 7, at 9 (citing R. Doll et al., Mortality in Relation to Smoking: 40 Years’ Observations on Male British Doctors, 309 Brit. Med. J. 901, 901–11 (1994), available at http://bmj.com/all.shtm).
10 Questions and Answers, supra note 1 (statistics as of 1995).
11 See Proposed Directive, supra note 7, at 7–8. But see Marc C. Willemsen and Boudewijn de Blij, Tobacco Control Factsheets: Tobacco Advertising, at http://factsheets.globalink.org/en/advertising.shtml (citing M.J. Stewart, The Effect on Tobacco Consumption of Advertising Bans in OECD Countries, 12 Int’l J. of Adver. 155 (1993)) (suggesting that such legislation has had no effect on tobacco consumption) (last visited Nov. 17, 2002).
12 Council Directive 89/552/EEC, arts. 13, 17, 1989 O.J. (L 298) 23, 29 [hereinafter Television Directive].
13 Id. art. 13 at 28.
14 Id. art. 17 at 29.
15 See Parl. Eur. Doc. (COD/1989/0194) in Legislative Observatory, available at http:// wwwdb.europarl.eu.int/oeil/oeil_ViewDNL.ProcedureView?lang=2&procid=12 (last visited Nov. 17, 2002) [hereinafter Legislative Procedural History].
16 European Tobacco Ban Overturned, BBC News, Oct. 5, 2000, at http://news.bbc.co.uk/ 1/hi/health/956194.stm; see Treaty Establishing the European Community, Nov. 10, 1997, O.J. (C 340) 3 (1997) arts. 129, 100a (as in effect when proposal was finalized) [hereinafter EC Treaty] (now articles 152, 95(1) in Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, O.J. (C340) 1 (1997) [hereinafter Treaty of Amsterdam]).
17 See e.g., Charles Bremner, EU Vote Spells End to Tobacco Ads in Four Years, Times (London), May 14, 1998, at 2. The switch in position was attributed to the change in British government leadership from the Conservative Party to the Labour Party, which enabled the proposal to pass with the minimum number of votes for a qualified majority. Id.
18 See Legislative Procedural History, supra note 15.
19 Council Directive 98/43/EC, 1998 O.J. (L 213) 9, 10–11 [hereinafter Directive].
20 Id. art. 6(3) at 11.
21 Id.
22 Id. at 9.
23 Id.
24 EC Treaty, supra note 16, art. 100a (now article 95(1) of the Treaty of Amsterdam).
25 Id. art. 3(c) (now article 3(1)(c) of the Treaty of Amsterdam).
26 Id. art. 57(2) (now article 47(2) of the Treaty of Amsterdam).
27 Id. arts. 57(2), 66, 55–58 (now articles 47(2), 55, 45–48 of the Treaty of Amsterdam).
28 See e.g., Press Release, supra note 5; Bremner, supra note 17, at 2.
29 See id.; Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides:
(1)Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. . . .
(2)The exercise of these freedoms, since it carries with it duties and responsibilities may be subject to such formalities, conditions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 10, 213 U.N.T.S. 221, 230.
30 See, e.g., Case C-376/98, Germany v. Parliament and Council, 2000 E.C.R. I-8419 (2000); Case C-74/99, The Queen v. Secretary Of State for Health, ex parte Imperial Tobacco Ltd., 2000 E.C.R. I-8599 (2000) [hereinafter Imperial Tobacco Ltd.]. The Parliament’s Legal Affairs Committee had voiced this opinion, and this may have influenced the decision of the complaining parties. When the Parliament was deliberating on the validity of the Directive during the co-decision process, its Legal Affairs Committee voted not to adopt the proposal since it believed that Article 100a was not the proper legal basis. Legislative Procedural History, supra note 15. Members of the Committee felt that it should have been based instead on Article 129, the public health provision. Id. The Parliament, however, did not take this advice in opting to approve the proposal. Id.
31 Germany v. Parliament and Council, 2000 E.C.R I-8419, at pmbl.; Imperial Tobacco Ltd., 2000 E.C.R. I-8599, at pmbl.
32 Germany v. Parliament and Council, 2000 E.C.R. I-8419, at pmbl.
33 Imperial Tobacco Ltd., 2000 E.C.R. I-8599 (declining to decide the merits since it had already annulled the Directive).
34 Germany v. Parliament and Council, 2000 E.C.R. I-8419, at para. 75.
35 See id. at paras. 12–35.
36 Id. at paras. 32–35.
37 See id. at paras. 21–27.
38 Id. at paras.12–27.
39 Germany v. Parliament and Council, 2000 E.C.R. I-8419, at paras. 32–35.
40 DEsite, Case Histories: Tobacco Advertising Directive, at http://drcwww.kub.nl/dbi/in-structie/eu/en/T36.htm (last visited Nov. 17, 2002) [hereinafter Legislative History].
41 Id.
42 Id.
43 See id; see also Kevin O’Sullivan, European Parliament Set to Approve Tobacco Ad Ban, Irish Times, May 13, 1998, at 6.
44 See Legislative Procedural History, supra note 15.
45 See id; see also supra text accompanying note 30.
46 Germany v. Parliament and Council, 2000 E.C.R. I-8419, at paras. 32–35.
47 Id.
48 See id. at para. 88.
49 Id.
50 EC Treaty, supra note 16, art. 129 (now article 152 of the Treaty of Amsterdam); see Germany v. Parliament and Council, 2000 E.C.R. I-8419, at para. 88.
51 EC Treaty supra note 16, art. 100a(3) (now article 95(2) of the Treaty of Amsterdam); see Germany v. Parliament and Council, 2000 E.C.R. I-8419, at para. 88.
52 Germany v. Parliament and Council, 2000 E.C.R. I-8419, at para. 88.
53 See id. at paras. 90–95.
54 Id.; Directive, supra note 19, at 9.
55 Germany v. Parliament and Council, 2000 E.C.R. I-8419, at para. 88.
56 Id. at paras. 97–100.
57 Id. at paras. 98–100.
58 Id.
59 Id. at paras. 94–97.
60 Germany v. Parliament and Council, 2000 E.C.R. I-8419, at para. 106.
61 Id. at para. 107.
62 See id.
63 Id. at para. 109.
64 Id.
65 Germany v. Parliament and Council, 2000 E.C.R. I-8419, at para. 110.
66 See id. at paras. 63, 74.
67 See id. at paras. 110–11.
68 Id. at para. 110.
69 See id. at paras. 110–16.
70 Germany v. Parliament and Council, 2000 E.C.R. I-8419, at paras. 110–16.
71 Id. at para. 117.
72 Id.
73 Id. at para. 118.
74 See Commission Tries Again to Outlaw Tobacco Advertising, EUbusiness, May 30, 2001, at http://www.eubusiness.com/cgi-bin/item.cgi?id=48320.
75 See Proposed Directive, supra note 7.
76 Id. at 2.
77 See id. at 13.
78 See id. at 2.
79 See generally Germany v. Parliament and Council, 2000 E.C.R. I-8419.
80 See infra Part III.A.
81 See infra Part III.B.
82 See id.
83 See id.
84 See Germany v. Parliament and Council, 2000 E.C.R. I-8419, at para. 95.
85 See id. at paras. 111–16.
86 See id. at para. 118.
87 See Television Directive, supra note 12, at 28--29.
88 See id., pmbl. at 24–26.
89 See Germany v. Parliament and Council, 2000 E.C.R. I-8419, at paras. 90–95.
90 Proposed Directive, supra note 7, at 14.
91 See Germany v. Parliament and Council, 2000 E.C.R. I-8419, at paras. 90–95.
92 See Proposed Directive, supra note 7, at 14.
93 See id.
94 See id.; Television Directive, supra note 12, at 28--29; Proposed Directive, supra note 7, at 14.
95 See Germany v. Parliament and Council, 2000 E.C.R. I-8419, at para. 117.
96 See Treaty of Amsterdam, supra note 16, art. 152.
97 See id.
98 See id.
99 See id.
100 See Legislative History, supra note 40.
101 See Treaty of Amsterdam, supra note 16, art. 152.
102 See id. art. 152(4)(c).
103 See id.