The European Court of Justice has delivered what may prove a serious body blow to any EU-wide campaign against tobacco advertising.
A non-binding opinion from the EU court's Advocate General found yesterday in favour of the German and British governments and several tobacco firms, including Imperial Tobacco Group, Gallaher Group and British American Tobacco, that a 1998 directive had been introduced on the wrong legal base and should therefore be annulled.
Coincidentally the opinion pitches an Irish advocate-general, Mr Nial Fennelly, against the former Irish commissioner, Mr Padraig Flynn, who introduced the legislation.
Mr Fennelly's opinion now goes to the court, which is expected to rule in the autumn. It usually takes the advice of the Advocate General.
Mr Flynn had succeeded in getting the legislation passed, after a long battle with the tobacco lobby, under the internal market provisions of the treaty because at the time the public health competences of the Union were extremely limited.
The EU adopted the directive in July 1998 to gradually phase out almost all tobacco advertising and sponsorship by 2006.
The legislation would phase out most forms of tobacco advertising three years after coming into force. Press advertising would be allowed for a further year. Sponsorship of most sports and arts events would be allowed for a further two years, and of major international events such as Formula 1 motor racing until October 2006.
"The Advocate General considers that the sole effect of the directive is to prohibit trade in goods and services to which it relates . . . Under law, a measure whose sole effect is to prohibit an economic activity cannot remove barriers to trade which affect that activity," Mr Fennelly argued.
As such then, he continued, the measure could not be said to contribute to the development of the internal market and should not be introduced in this guise.
The Commission said yesterday it would wait for the formal ruling before deciding what to do, but added it would respect whatever the court said.
The Advocate General's opinion comes a day after the European Parliament backed plans for larger health warnings on cigarette packets.
