Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, bans tobacco advertising in the print media, on radio and over the internet in Europe.
It also prohibits tobacco sponsorship of cross-border cultural and sporting events. The Directive gave EU Member States until 31 July 2005 to implement the rules it contains.
In 1998 the Commission passed a directive banning all forms of tobacco advertising and sponsorship. This directive was annulled by the European Court of Justice in 2001, which ruled that a total ban went beyond the EU’s powers. However, the Court stated that the EU could legitimately introduce a more limited ban on tobacco advertising and sponsorship. The 2003 Directive adheres strictly to the limits laid down by the Court in its 2001 judgement.
Although tobacco advertising on television has been banned in the EU since the 1990s, this is governed by the TV Without Frontiers Directive rather than the Tobacco Advertsing Directive.
Advertising in cinemas and on billboards or using merchandising (e.g. ash trays or parasols) and tobacco sponsorship at events which are purely local, with participants coming from only one Member State fall outside the scope of the Tobacco Advertising Directive.
After 31 July 2005 tobacco sponsorship of Grand Prix races and all other European sporting or cultural events should cease. This would not apply, for instance, to the Chinese Grand Prix if broadcasted in European TV.
As of December 2006, 24 Member States have notified the Commission of their implementation of the Directive. 5 member states haven’t transposed the Directive into national bills : Germany, Spain, the Czech Republic, Hungary and Italy.
The Commission can initiate infringement proceedings against Member States for not implementating, or not enforcing, EU laws. These begin with an official warning from the Commission to the Member State(s) in question and can end with judgements and fines in the European Court of Justice (ECJ). The Commission will make use of these powers to ensure Member States implement, and then enforce, the Tobacco Advertising Directive.
Infringement procedures
Germany
In September 2003 the German government asked the ECJ to review the validity of the Directive. Germany argued that EU lawmakers exceeded their powers under the internal market provisions of the EU Treaty (Article 95) in passing it. Germany argued that tobacco advertising in local newspapers should not be subject to European legislation as they do not affect trade between EU countries.
In parallel to the challenge by the German government, the owners of the Nürburgring motor racing circuit have lodged a challenge with the Court of First Instance claiming that the ban on tobacco sponsorship will unlawfully cause them economic damage.
On 1 February 2006, the European Commission sent "reasoned opinions" to Germany and Luxembourg for failing to transpose the Directive into national law. They had 2 months to comply. However, the European Court of Justice (ECJ) has declared that Germany has failed to fulfil its obligations under EC law. The European Court of Justice advocate General Léger supported the European Commission position rejecting the German challenge on the grounds of public health protection, and that the harmonisation of laws is necessary in order to comply with internal market rules. In December 2006, the European Court of Justice dismissed the challenge by Germany against the Tobacco Advertising Directive. The Commission will now insist that Germany transposes the Directive, which it should have done by the end of July 2005. If they still do not comply with the Court’s judgment, the ECJ can impose fines following a proposal from the Commission.
Luxembourg, Spain, Italy, Hungary & Czech Republic
In July 2006, Luxembourg claimed to have updated its law to comply with the Directive.
However, on the 04 April 2006, the European Commission noted compliance problems with the sponsorship ban, in four other Member States : Spain, Italy, Hungary and the Czech Republic. As a result, each state has been sent a letter of formal notice from the Commsission before infringement procedures begin.
In October 2006, Italy was refered to the European Court of Justice, and ’reasoned opinions’ were sent to the Czech Republic, Spain and Hungary.
[Commission website on tobacco control policies
