The Select Committee on
European Legislation has made further progress in the matter referred
to it and has agreed to the following Report:-TOBACCO ADVERTISING
Amended draft Directive on the approximation of Member States' laws, regulations and administrative provisions on advertising of tobacco products. (Supplanted by (b).)
Amended draft Directive on the approximation of Member States' laws, regulations and administrative provisions on the advertising of tobacco products.
Unofficial Presidency Compromise Text of the same amended draft Directive.
(a) and (b) Article 100a; co-decision; qualified majority voting (disputed)
(c) Articles 100a, 57(2) and 66; co-decision; qualified majority voting
Basis of consideration:
Ministerial letter of 10 November 1997; EM of 17 November 1997; supplementary written evidence from the Department; oral evidence from the Minister of State for Health, 19 November 1997; and written evidence from a number of witnesses (see contents, page v)
12 November 1997, on the basis of Ministerial letter of 10 November
Legally and politically important
Document (a) Cleared
Documents (b) and (c) For debate in European Standing Committee B
1. A draft Directive to ban
tobacco advertising was considered by a previous Committee as
long ago as 1991, and an amended version of that draft in 1992.
Our predecessors in the last Parliament were told on a number
of occasions that a blocking minority of the UK and other Member
States opposed the proposals, and that there was therefore no
prospect of a compromise position being agreed.
2. Moreover, in December
1993 the Council Legal Service had taken the view that a measure
to ban tobacco advertising could not be based upon Article 100a
of the Treaty, as was proposed (we consider this in greater detail
in paragraphs 11 to 16 below).
3. The incoming Government
in May this year had made a manifesto commitment to ban tobacco
advertising, and it seemed likely that there would be movement
on the draft Directive. On 18 July the Minister of State for Public
Health (Tessa Jowell) told us
that she had explained to the Health Council on 5 June that, before
the Government could decide its response to the draft Directive,
it would need to know the opinion of the Council Legal Service
on the legal base. The Minister undertook to keep us informed
4. On 10 November the Minister
brought us up to date on negotiations on the text and said on
the question of the legal base:
Legal Service has not yet revised its 1993 opinion that the proposal
could not legitimately be based on Article 100a of the EC Treaty.
The Commission Legal Service disagrees with this assessment.
The Presidency compromise text is still based on Article 100a
but may also now include references to Articles 57(2) and 66 on
which we are seeking legal advice. The Council will therefore
have to look at the question of the legal base as part of its
overall consideration of the Directive."
5. On the text, the Minister
said that the Presidency had tabled a draft compromise text (a
version of which is document (c) now before us) and was aiming
to agree a Common Position at the 4 December Health Council.
A number of substantial issues, particularly the question of sponsorship,
remained to be resolved in negotiations.
6. On 12 November we considered
the Minister's letter of 10 November. We thought that the question
of the legal base might not be resolved before the Council on
4 December at which it was hoped to agree a Common Position.
We were also concerned that the text of the proposal would change
before it went to the Council of Ministers; for example, it contained
no provision for the exemption of Formula One.
7. A ban on tobacco advertising
raises issues of considerable political importance. The Government's
proposal that Formula One motor racing should be excluded from
that ban (see paragraphs 19 to 37 below) has raised the profile
still further. We therefore asked the Minister to appear before
us today to give oral evidence. This appears on pages 1 to 11
below, together with other submissions we have received.
8. The way in which Parliament
is forced to consider this important proposal is unsatisfactory,
and reinforces the criticisms of the European legislative process
made by ourselves and our predecessors. We still do not have
a final and authoritative text of the proposal,
despite that fact that it may be agreed by the Council of Ministers
on 4 December, and the debate that we have recommended must take
place before then. We learned only yesterday that the Council
Legal Service might have changed its view on the legal base. The
timescale meant that the Minister's Explanatory Memorandum on
the possible compromise text reached us only two days ago (for
which we make no criticism of the Minister).
9. Our predecessors consistently
pressed for better European legislation,
and we entirely endorse their views. The Amsterdam Treaty's Protocol
on the Role of National Parliaments in the European Union underlines
the importance of the contribution of National Parliaments, and
emphasises the importance of adequate time for consideration of
legislation. In our view, this is a clear signal to National Parliaments
to play an influential role in legislation at the European level.
in its present form
10. The Minister's Explanatory
Memorandum of 17 November contains a copy of the latest version
of the text, and is available in the Vote Office. The latest
version of Article 2 (handed to us by the Minister when she gave
oral evidence) appears on page 15 below. The Minister says that
the Presidency text would ban advertising for tobacco products
on posters and in magazines, as well as promotional activities
and advertising through sponsorship. It would also address the
issue of indirect advertising through branded goods and ban the
free distribution of tobacco products.
It would not make rules about the control of tobacco trade journals,
point of sale displays and advertising and vending machines; the
Member States could regulate these at national level. Member
States would be allowed to defer the application of the Directive
so as to minimise damage to sports and arts events which might
have difficulty in finding alternative sponsors:
the text would allow an implementation period of 2½ years
with a further 2 years' derogation for sponsorship and associated
advertising, making a total of 4½ years after the date of
adoption; the earliest likely date for this being 30 April 1998.
also contains a derogation for the introduction of its rules on
products regarded as 'indirect' advertising for tobacco products,
such as Camel boots and Marlboro jeans. Pre-existing non-tobacco
products using the brand name of a tobacco product would also
have 4½ years from the date of adoption to distinguish the
appearance of their branding and advertising from those of the
been made to minimise the cost to those businesses which will
be unintentionally affected by the Government's manifesto commitment
to ban tobacco advertising."
Issues raised by the
11. In 1993 the Council Legal
Service (CLS) gave an opinion on the legal base of the amended
version of the proposal (document (b)). It concluded that a Directive
providing for a total ban on advertising could not be adopted
by the Council on the basis of Article 100a
or any other Treaty Article.
12. The CLS took the view
that a measure could not be based upon Article 100a unless, in
aim and content, it was intended to achieve the free movement
of goods between Member States, or fair competition to avoid distortion
of the market. It concluded that a ban on the free distribution
of tobacco products therefore did not fall within Article 100a
because it covered purely domestic situations, not the generality
of the internal market, and was designed to protect health.
13. The CLS also had grave
doubts as to the possibility of basing a total ban on advertising
on Article 100a because such a ban would apply without distinction
to advertising material imported from other Member States, to
material intended for limited domestic markets (local press) and
even more locally (posters, for example). Moreover, even assuming
that Article 100a could be a correct legal base, a measure which
had such a broad application would not be consistent with the
principle of "proportionality" because it went beyond
what was necessary for the establishment and functioning of the
14. The CLS also advised
that Article 129, which relates to public health, could not constitute
a proper legal base because Article 129(4) expressly rules out
any measure harmonising the laws of Member States. Nor could Article
235 (a general provision which enables the Council to adopt measures
necessary to attain Community objectives where the Treaty does
not provide the necessary powers) be used for harmonisation measures
to achieve the objectives of Article 129.
15. When the Minister of
State wrote to us on 10 November, the CLS had not yet revised
its 1993 opinion that the proposal could not legitimately be based
on Article 100a. By 17 November, the Department of Health was
able to tell us that the CLS Representative on the Health Questions
Working Group had indicated that the CLS no longer opposed the
proposal on the grounds of legal base; and that a further
CLS written opinion would be prepared for the Committee of Permanent
However, it appeared from the Minister's evidence this afternoon
that in fact no new opinion would be produced by the CLS.
We would have been interested to see the reasoning which has
apparently led to the reversal of the strongly-argued 1993 opinion.
16. As the Government points
out, the Council of Ministers has to decide what it wishes to
do, and "there is nothing intrinsic in the proposed legal
base which would prevent the Council from adopting this measure."
The Minister told us that the Commission's lawyers were content
with the use of 100a.
For its own part, the Government "is satisfied that there
are sufficient grounds in Article 100a for the Council to proceed,
and expects other Member States to reach the same view.
We do not dissent from the view that Article 100a is an acceptable
17. We note that Articles
57(2) and 66 are also cited as part of the legal base for the
proposal. The Department has told us that these are the legal
base for the Broadcasting Directive,
which bans television advertising of tobacco products. That draft
Directive now covers tobacco advertising on radio, television
and cinema through radio, television or film coverage of tobacco-sponsored
sports and arts events. "The Presidency compromise text will
therefore need to refer to Articles 57(2) and 66 for completeness,
although the principal Treaty base remains Article 100a".
18. The "subsidiarity"
principle set out in Article 3b of the Treaty establishing the
European Community provides that Community action shall be taken
"only if and in so far as the objectives of the proposed
action cannot be sufficiently achieved by the Member States and
can therefore, by reason of the scale or effects of the proposed
action, be better achieved by the Community". The Government's
view is that the proposal complies with the principle:
"It has been
introduced primarily as an internal market measure under Article
100a, with the aim of approximating the rules relating to the
advertising and sponsoring of tobacco products to reduce barriers
to circulation and distortion of competition. Article 100a(3)
obliges the Commission to take a high level of health protection
as its basis for any internal market measures. However, the Directive
does not make rules about the control of tobacco trade journals,
point of sale displays and advertising and vending machines; this
is left to the Member States, as these issues are best addressed
at a national level."
Formula One exemption
19. We do not express
a view on the merits of the Presidency text; the European
Standing Committee and the House will have an opportunity to do
that, following our debate recommendation. However, we felt that
the Government's proposal permanently
to exempt Formula One motor racing from the ban deserves closer
20. The formulation of the
Government's policy on this aspect is described in answers to
In her Explanatory Memorandum, the Minister had told us:
the issue of sponsorship in depth the Government has proposed
excluding Formula One from the scope of the Directive.
The Government has always made clear that it is pursuing twin
objectives of reducing smoking and of safeguarding sport from
any effects arising from the loss of tobacco sponsorship. A blanket
Europe-wide ban on Formula One sponsorship and associated advertising
is not only likely to mean fewer Grand Prix races in Europe, but
also, perversely, more tobacco advertising on UK TV screens beamed
in from events outside the EU."
21. This is broadly the view
of the FIA, which says that a ban would encourage the tobacco
industry to support major events outside the EU:
case of Formula One, over 70% of the world television audience
is in the Asia/Pacific region, while ten of the sixteen Formula
One championship races are held within the EU. There is already
substantial pressure to increase the number of events in Eastern
Europe, Latin America and the Asia/Pacific region. In these regions,
governments are prepared to exempt Formula One from any restriction
on tobacco advertising. These regions are of course, growth markets
for the tobacco industry, in contrast to the mature markets of
2 They recommended it for debate (see HC 24-iv (1991-92), paragraph 1 (4 December 1991); and a debate took place in European Standing Committee B on 5 February 1992, but the Standing Committee came to no Resolution on the document. The Committee in the 1992 Parliament examined the document again in June 1992, together with the amended version (document (b) now before us)which had by then been put forward by the Commission. They recommended both documents for debate (see HC 79-i (1992-93), paragraph 11 (17 June 1992) but the debate was still pending at the end of the Parliament, as it appeared that no progress would be made on the proposal. Back
3 By letter; see HC 155-iii (1997-98), paragraphs 1.4 to 1.8. Back
4 See Q 6. Back
5 See, for example, The Scrutiny of European Business, HC 51-xxvii (18 July 1996), The Role of National Parliaments in the European Union, HC 51-xviii (18 July 1996) and The Draft Protocol on the Role of National Parliaments, HC 36-xiii (5 February 1997). Back
6 See Qq 6 and 7, and Article 2 (p 15 below). Back
7 Article 100a makes provision for the establishment and functioning of the internal market. Back
8 Evidence, p. 14. Back
9 Q 2. Back
10 Although we note the Minister's point that the current text differs "substantially" from the 1993 version (Q 2). Back
11 ibid. Back
12 Evidence, p. 14. Back
13 See also Q 2. Back
14 89/552/EEC. Back
15 Evidence, p. 14. Back
16 Q 10. Back
17 See also Qq 32-37. Back
18 The terms in which the Government envisages seeking the amendment of the draft are:
"This Directive shall not apply to:
- sponsorship of Formula One motor racing, including any advertising of the sponsors' products forming part of the sponsorship deal". See Evidence, p. Back
19 See also Q 9. Back