Another, more restricted directive was passed to limit tobacco advertising (no TV/Radio adverts). ECJ held that this was within the scope of powers granted under art. 95.
ECJ said: While a mere finding of differences between national rules is not enough to justify having recourse to article 95, when there are differences that obstruct the fundamental freedoms (free movement of goods and service and labour etc) and thus have a direct effect on functioning of internal market there is a basis for using art. 95. The Swedish match case was interpreted as saying that, provided the requirements of art. 95 are satisfied the community legislature cannot be prevented from relying on it as a legal basis , even where the decisive factor was public health, rather than promoting the functioning of the free market. Technically doesn’t contradict the first ‘tobacco advertising ban’ case, since the directive here was narrower, but certainly seems to undermine the principle of the earlier decision.