Germany v Parliament and Council [2000] ECR I-8419

• Germany was challenging a directive issued pursuant to Article 95, which sought to ban tobacco advertising in all forms except at the point of sale.

• Germany argued that the directive was unlawful, as those articles did not provide the legal basis for issuing a directive on tobacco advertising.

• ECJ agreed, and annulled the directive. 

ECJ Judgement

• Article 95 conferred on the council/commission the power to promote the internal free market, but did not imply a power to regulate the market. 

• Measures adopted under Article 95 must have the specific objective of improving the conditions for the establishment and functioning of the internal market – and they must be designed to remove genuine obstacles to free movement rather than being concerned with purely abstract risks. 

• It would be contrary to Article 5 to allow EP to assume a power not conferred on it. ECJ said that (settled case law) Article 95 may not be used to merely remove ‘incidental’, rather than ‘appreciable’ barriers to competition. 

• No such appreciable distortions of competition were addressed by this directive.

• Good - the power to remove internal obstacles to free trade of a product (tobacco advertising here) does not include the power to ban the product itself. It cannot be seriously claimed that this directive was intended to remove internal barriers/obstructions to free trade, as individual member states would be permitted to take even harsher steps under the directives. 

RELATED CASES

• Germany v Parliament and Council [2007]