Submitted by the European Newspaper Publishers’ Association (ENPA),the European Publishers Council (EPC) and the Federation of European Magazine Publishers (FAEP) on the occasion of the hearing in the European Parliament on 15th April 2002 on the Draft Directive concerning the advertising of tobacco products and related sponsorship.
The newspaper, magazine and internet publishers represented by ENPA, EPC and FAEP acknowledge the fact that health considerations may be integrated into Community policies. However, given that there is no legal basis in the Treaty on which to harmonise national legislation solely on the basis of health protection, this integration needs to be in line with and without prejudice to the other requirements of the EC-Treaty including the test of necessity and proportionality.
Decision of the Court of Justice and the Commission’s reaction
Two years ago the European Court of Justice annulled the first directive from the Commission on the grounds of its legal basis. In particular,the Court formally rejected health protection as the admissible legal basis behind such an initiative (5 Oct. 2000, case number C-376/98).
The European Commission therefore sought a basis on which to propose a second directive to ban tobacco advertising and sponsorship other than on the grounds of health protection.
We note that the Court specifically stated that a directive based on 100a (currently article 95) must improve the conditions for the establishment and functioning of the internal market. The Court also noted (paragraph 97) that no obstacles currently exist to the importation of press products (containing tobacco advertising).
Although the Court goes on to say that the trend in national legislation is towards greater restrictions on advertising (for health reasons), and that obstacles might therefore arise in the future, we would oppose absolutely
a directive based on a theoretical possibility and one which is going to be increasingly difficult to impose given the nature of the free flow of information and press products on the Internet and from third countries.
Nevertheless, the Commission has seized upon this theoretical internal market remit, founded on the basis that because certain media can cross borders there is an argument to harmonise the laws on tobacco advertising in order to avoid any barrier to the free circulation of such media.
The inherent weakness of the Commission’s case and legal basis
In this paper, the organisations representing Europe’s publishers wish to expose the inherent weakness in the current legal basis and explain why this directive, like its predecessor, will be subject to challenge before
the Court of Justice. In addition, internal market considerations cannot justify a situation where the result is inherently contrary to the free movement of services, having as a result a total prohibition of the provision of those services.
Newspapers and magazines are produced for national markets – often aimed only at regional or local markets.
These are subject to the laws of these countries, some of which ban tobacco advertising.
Some of these titles are contemporaneously produced in more than one country but each edition, in each country, complies with the laws of the country of publication. There are very few exceptions to this and we don’t believe that the Commission has fully understood this aspect of print publishing in the 21st century.
It is now technologically possible to produce more than one edition each day, in several different languages, for several different markets. It is true that some newspapers and magazines physically cross borders in
their original form – mainly for citizens of that country who find themselves outside their home country, but the percentage of these by comparison to their national circulation in their intended market, is so miniscule (on average between 1 and 2 % of newspapers are sold outside their home country) that we cannot agree this represents a problem large enough to be tackled by European Directive.
The Commission attests, lavishly and with numerous facts, the widely acknowledged health-related consequences of tobacco consumption. According to the Commission, the habit of smoking develops during childhood or in early adolescence. Some 60% of smokers had begun smoking by the age of 13, more than 90% before the age of 20. Since only around 10% of current smokers took up smoking as adults, young people represent the age group from which most new smokers are recruited.
The Commission surprisingly does not attempt to prove the link between consumption and advertising contained in foreign media. Because the Commission does not have the legal competence to draft legislation in the area of health protection, it must attempt to justify its decision to legislate media content. There is no consideration of the decisive question of how many children and young people actually read foreign newspapers and magazines (the directive can only be concerned with these), and of these how many see the tobacco advertising in them.. There is no substantiating evidence of this at all. Therefore the necessary basis to be able to assess the appropriateness and proportionality of the ban is lacking. Unless the Commission can justify this directive on internal market grounds,
they will once again be accused of attempting to introduce a health protection measure in the guise of freedom to provide services.
Health protection can only be taken into account within the framework of this proposed directive if a ban on advertising promotes the functioning of the internal market (cf. ECJ judgement supra). This however presupposes
an existing problem with the internal market.
Such a problem is simply claimed by the European Commission, without being substantiated. In its analysis, the Commission examines national regulations individually, without making concrete reference to actual disruptions to cross-border trade. If, as claimed, the Commission has evidence of obstacles in the newspaper market, these should be expressed in concrete terms and made accessible in order to allow their relevance to be verified.
In this respect it would be necessary to have proof of existence of significant obstacles to the internal market and that the measures envisaged would promote the free circulation of goods and services.
The draft directive succinctly asserts a barrier to trade without going into further detail. The Commission would not find it easy to produce hard and fast evidence. To date, no Member State has actually acted to prevent the sale of foreign publications containing tobacco advertisements.
So far only three countries (France, Italy and Sweden) have imposed a ban on tobacco advertising both in domestic and foreign newspapers. In spite of this ban, no attempts have been made, in practice, to prevent the importation of foreign publications containing tobacco advertising, even in these countries, where the principle of proportionality has been respected.
Other Member States (Germany, Greece, Luxembourg, Austria, Spain, the United Kingdom) permit tobacco advertising in the press or (as in the case of Belgium, Denmark, Ireland and the Netherlands, Portugal) establishing free trade clauses providing for exemptions for newspapers published abroad.
Consequently, there is no case to be made of a significant de facto disturbance to the internal market.
The case of Europe’s publishers
Before you consider supporting the latest proposal, Europe’s publishers would like you to consider the wider implications for the freedom of expression. These are continually dismissed but this is not just a “tobacco” issue. This is not just a health issue. A directive banning press advertising will have wider repercussions than the loss of tobacco advertising, setting a damaging precedent for the future of the freedom to advertise and the free circulation of newspapers and magazines(in print and on the Internet) throughout the internal market of the EU.
This is not simply a question of formalising national bans and restrictions.
To proceed with a new directive, singling out the advertising of tobacco products in the press raises three major questions:
- What are the implications of such a Directive for the freedom to advertise any product or service in the European Union in the future? For example, alcoholic beverages, toy advertising, car advertising or any form of advertising where there are already divergent rules at national level which might theoretically lead to obstacles of importation of press (and Internet) services?
- Would such a directive on tobacco advertising be proportionate (according to the Treaty and the specific principles agreed by the European Commission in the Green Paper and subsequent Communication on Commercial Communications)?
- Would a directive banning advertising only in the press, create unfair competition between EU-based publishers and those outside the EU?
We are astonished, quite frankly, that the Commission can bring forward a proposal banning advertising only in the press, when sponsorship“without a cross-border effect” will survive, and advertisements will continue to appear on billboards, in shops and via direct mail, simply because the Commission cannot claim internal market status for these
activities, but can do so for the press. This action cannot be proportionate, and worse still, cannot possibly lead to a reduction in smoking – the Commission’s stated objective, and is certainly not justified, in our view, in terms of creating an internal market.
Commissioner David Byrne claims his proposal is complying with the letter of the Luxembourg court’s judgement. We are not so sure. The Court made it clear that the Commission cannot introduce health measures on the back of internal market clauses of the Treaty and attempt to extend the scope of the Community’s remit to Health protection without the proper institutional agreements. By taking a limited area of advertising that has a limited cross-border effect, and by claiming theoretical barriers to trade, we feel the Commission is in breach of the spirit of the judgement.
If a precedent is set, that in order to achieve an internal market in press products you have to ban the advertising of products or services which are regulated differently in each member state, the Commission will, we believe, be exposed to calls for further bans or restrictions for many different reasons, none of which will contribute to the development of an internal market.
We have explained to the Commission that publishers will suffer in several direct ways:
- Direct loss of revenue from advertising in those countries where it is still permitted with no prospect of compensation;
- Unfair competition from publications from outside the EU which continue to carry advertising for tobacco products and
- Unfair competition from sponsorship and advertising in other advertising media.
If it were possible for you to ensure that a discussion takes place in your committee to enable these views to be aired in a transparent way we would be most grateful to you.
Submitted by the European Newspaper Publishers’ Association (ENPA), the European Publishers Council (EPC) and the Federation of European Magazine Publishers (FAEP)
EPC – European Publishers Council
Executive Director: Angela C Mills
49 Park Town, Oxford, OX2 6SL
Tel: +44 (0) 1865 310 732
Fax: +44 (0)1865 310 739
ENPA – the European Newspaper Publishers’ Association
Director: Dietmar Wolff
Rue des Pierres, 29, Boîte 8
Tel : + 32. 2. 551 . 01 . 90
Fax: + 32. 2. 551 . 01 . 99
FAEP – Federation of European Magazine Publishers
Secretary General: David Mahon
Rue D’Arlon 15
Tel: 02 286 80 94
Fax: 02 286 80 95
8th April 2002