Another directive made under art.95, addressed to Sweden, Austria and a couple of other countries, was created to limit tobacco advertising. The ECJ held that this directive was valid because it sought to ensure that regulation of tobacco advertising was done in a harmonised way, and not ad hoc depending on the country. Thus it was designed to improve the functioning of the internal market by eliminating barriers to free movement of goods by removing inter-state discrepancies on advertising.
ECJ said: Provided that the conditions of making a directive pursuant to article 95 were met, the strong influence of public health considerations did not render the directive in breach of article 5. “recourse to Article 95 EC as a legal basis is possible if the aim is to prevent future obstacles to trade resulting from the heterogeneous development of national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them.” Any directive must comply with the principle of proportionality. “the Community legislature must be allowed a broad discretion in an area such as that concerned in the present case, which involves political, economic and social choices on its part, and in which it is called on to undertake complex assessments. Only if a measure adopted in this field is manifestly inappropriate in relation to the objective which the competent institutions are seeking to pursue can the lawfulness of such a measure be affected”.