Heute hat der Generalanwalt beim Europäischen Gerichtshof mit seinem Plädoyer die Entscheidung des Gerichts für das europaweite Tabakwerbeverbot quasi vorweg genommen.

Ich hatte vor Monaten, als das Verfahren begann, einen kurzen Kommentar dazu geschrieben, den ich allerdings �?? nach einiger ßberlegung �?? keiner Zeitung angeboten habe. Ich wollte meinen damaligen Arbeitgeber, einen Think Tank, nicht dem Verdacht aussetzen, von der Tabakindustrie �??gekauft�?? zu sein (was er übrigens auch nicht ist, aber das Thema Tabak ist für politische Think Tanks eben sehr heikel, weil man schnell in Verdacht gerät).

Nun sollte ich vielleicht noch vorweg schicken, dass ich nicht nur nichts mit der Tabakindustrie zu tun habe, sondern zudem auch noch Nichtraucher bin. Dass mich das europaweite Tabakwerbeverbot dennoch so aufregt, liegt einfach am Prinzip. Meiner Meinung nach wird hier wieder einmal eine Sache entschieden, die ohne weiteres auf nationaler Ebene hätte geregelt werden können. Eine europäische Harmonisierung hingegen scheint mir hier nach wie vor absurd. Und deswegen veröffentliche ich hier dann doch noch einmal meinen alten Artikel.

Regulation behind the Smoke Screen

Once again, the European Commission finds itself in the European Court of Justice with a tobacco advertising directive. But what may appear to be a noble attempt to improve human health is in fact nothing else but Brussels�?? quest for more power.

The attempts by the European Commission to regulate tobacco advertising seem like a never-ending story. After years, if not decades, of discussions a first directive was introduced in 1998 and declared unlawful and void by the European Court of Justice in 2000. A second directive was then agreed upon in December 2002, and EU member states would have had to comply with it by June of this year. Now, another six months later, we are currently witnessing what could be the final stage in the European war on tobacco advertising. The European Court of Justice will be hearing the case of the Federal Republic of Germany against the European Commission on Tuesday, December 6. The case, however, is unlikely to be decided before spring next year.

So what is all the legal fuss about the ban on tobacco advertising all about, one might ask? To be honest, it would probably be much easier to say what it is definitely not about: The current court case has absolutely nothing to do with the health effects of tobacco. It does not have anything to do with the question of whether tobacco advertising has an effect on the level of smoking, either (though it is interesting to note that dozens of surveys have not managed to find a link between advertising bans and consumption levels). What the whole case comes down to is just a single question, which may look like a mere technicality: Which competences does the European Union have in health policy?

To find out about the competences of the European Union, having a look at the relevant treaties is a good starting point. Now, unfortunately for the Commission, always eager to find new fields for further activities, there is no clause or section in any of these European documents which would allow it to legislate directly in health matters. So the Commission had to find a way around these treaties, and that is what it tried with its first directive back in 1998. Instead of talking about health, it argued that because of the common market it was necessary to harmonize advertising regulations throughout the EU. After all, if advertising for product A was banned in country X, but allowed in country Y then free trade between X and Y would be inhibited. That may sound good in theory, but in practice this is absurd: A Portuguese cinema commercial for product A would hardly be understood by a Danish audience, and posters advertising a Finnish brand of product Z would hardly be understood by Italian consumers, let alone exported and used in Italy.

It thus hardly came as a surprise that the European Court of Justice ruled in 2000 that that �??a general ban on advertising for a large range of forms (posters, umbrellas, ash trays, hotel objects, film trailers) does not contribute to easing trade in the products.�?�

The Commission could have admitted defeat and focussed on things for which it truly had competences, but instead of doing so it tried regulating tobacco advertising again, this time with a modified directive. Taking into account the Court�??s ruling it now concentrated its regulation on print, radio, TV and Internet advertising �?? thus virtually regulating everything but posters and ashtrays.

The only problem with this new directive is that it is as ill founded as the first one for the huge cross-border implications of magazine and newspapers trade do not exist in reality. The German print market is a good case in point: Only one per cent of all German newspapers and magazines are sold outside Germany, and if they are sold outside Germany they are, surprisingly, read by Germans living abroad. Whether German print advertising is regulated thus affects first and foremost the Germans, but not the French, the British or the Italians. To argue that it is the common market that is endangered and that therefore there is a need for Brussels to intervene is simply absurd.

So if the problems of differing advertising regulations in the many EU member states are not in fact causing distortions in the common market, how can the Commission�??s insistence on the tobacco advertising ban be explained? The simple answer to this question is one word: power. As if the numerous competences of the EU and the creeping de-democratisation of Europe were not enough, the Commission is now trying to regulate areas for which it even lacks a specific competence in any of the European treaties. It has to be stressed again that this conflict is not about tobacco, for tomorrow it could be about alcohol, cars, fruit juice or whatever. The EU, once allowed to legislate into virtually any aspect of life on the basis of an alleged interference with the common market, could hardly be stopped from extending its reach. It is this aspect which makes the current tobacco advertising exercise look like a giant smoke screen for European bureaucrats to get hold of further powers.

Whether advertising for tobacco or even smoking as such should be banned, are difficult questions. But they should be answered where responsibilities are clear and politicians and bureaucrats are accountable to the public. And this is certainly not in Brussels.