Analysis Case C-376/98
1. The Community possesses an attributed competence in the field of public health – it is Article 152. Why did it not exercise it to adopt the Tobacco Advertising Directive, rather than relying – unsuccessfully – on Article 95 as the legal basis for that measure?
The member states have transferred sovereignty to the European level, but only on certain fields that exclude the public health. Article 152 with the title “public health” describes the - only complementary - Community actions in the field of public health, regarding that the Member States still have the competencies in this field. The competence of the Community in the field of public health that is derived from Article 152 is a merely indirect one. Article 152 (1) states that the Community shall ensure a high level of human health protection, but Article 152 (4c) excludes any harmonisation of the laws and regulations of the Member States.
If the real intention of the Community was to protect the health of its citizens by releasing a general prohibition of advertisement for tobacco products and by doing so harmonising the national laws of the Member States concerning advertisement for tobacco products, the Community would not have had a legislation to do so. It would infringe EU law. So the Community could not exercise Article 152.
The only possibility to stay within its competencies was by referring to Article 95. This article confers competence to the Community if the adopted measures have the establishment and functioning of the internal market as their object. Furthermore, it is legal that “harmonising measures adopted on the basis of other provisions of the Treaty” (Case C-376/98, paragraph 78) might have an impact on the protection of human health, like a “side effect”, but the Commission is not allowed to use other articles of the Treaty to circumvent Article 129 (4a).
The Community had to prove that the Tobacco Advertising Directive mainly constituted a measure for improving the premises of the internal market by referring on Article 95 and not on Article 152. Only indirectly it could still pursue its aim, namely of the protection of public health. So it tried to prove that unequal national law for advertising and sponsoring of tobacco products jeopardises the internal market by increasing barriers to the free movement for the products or services that serve as the media for such advertising and sponsorship (Directive 98/43/EC, paragraph 1) and at the same time, referring to the Commission’s obligation under Article 95 to ensure a high level of protection in the field of health.