Week 1 (public law): EU ban on fossil fuel advertising Flashcards
(21 cards)
Climate change and law
- When we think abt CC and law/climate law we first think abt international regime on CC
○ IPCC AR6 report : CC 2023
○ Limit warming to 1.5°C and 2°C goal through GHG emissions reductions- But cause of CC is GHG emissions - Happen locally
○ Emissions from transport in EU is cause of 25% total emissions
- Of which 75% is road transport- > Emissions have to be addressed somehow locally
- International aviation +129% since 1990 (pre-covid)
- Causes of CC local
-> How can they be addressed
-> What role does law play in process
- But cause of CC is GHG emissions - Happen locally
EU Law and misleading advertising by fossil fuel companies
just relationship b/w them
- Not only do fossil fuel ads create wrong impression that continued use of fossil fuels is okay also make false claims that are misleading to consumers
○ Misleading claims are already prohibited today under consumer protection law- Fossil fuel advertising normalises fossil fuels
○ Portrays continued use of fossil fuels as normal
- Fossil fuel advertising normalises fossil fuels
- Greenpeace has started European Citizens initiative to ask EU Commission to issue legislative proposal for a fossil advertising ban
Tobacco advertising: Can EU enact ban on fossil advertising?
history and stuff
- Tobacco advertising:
○ Lots of ads before - In ads, sponsorships, TV, radio
Tobacco advertising regulation EU 1990s:
○ UK:
- ban on TV and Radio ads
○ Spain and Portugal:
- near total ban since 1982 + 1983
○ Germany:
- TV and radio ads banned, sponsorship allowed
○ Italy:
- partial ban since 1962
TFEU Article 26
TFEU Article 26
1. The Union shall adopt measures w aim of est. or ensuring the functioning of the internal market in accordance w the relevant provisions of the treaties
- The internal market shall comprise an area w/o internal frontiers in which the free movement of goods, services, persons and capital is ensured in accordance w the provisions of the Treaties
objective of functioning of Internal market
TFEU Article 114
Article 114:
1. Save when otherwise provided in the Treaties, the following provisions shall apply for the achievement of objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance w the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt measures for the approximation of the provisions laid down by the law, regulation or administrative action in MS which have as their objective the establishment and functioning of internal market
2. (…)
- The Commission in its proposals envisaged in para. 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers the European Parliament and Council will also seek to achieve this objective
-> Internal market competence: EU entitled to adopt measures for approximation of national laws which have as their objective the establishment and functioning of the internal market
1st Tobacco Advertising Directive
- Directive 98/43/EC of European Parliament and of the Council of 6 July 1998
- on the approximation of the laws, regulations and administrative provisions of the MS relating to the advertising and sponsorship of tobacco products
- Enacted on basis of TFEU Art. 114
But did EU have competence to do so?
Provisions:
Article 1:
- The **objective of this Directive is to approximate the laws, regulations and administrative provisions of MS relating to advertising and sponsorship of Tobacco products
Article 2: For the purposes of this Directive, following definitions shall apply: 1) ' tobacco products' : all products intended to be smoked, sniffed, sucked or chewed inasmuch as they are made, even partly of tobacco 2) **'advertising' : any form of communication w aim or indirect effect of promoting a tobacco product**, incl. advertising which, while not specifically mentioning the tobacco product, tries to circumvent the advertising ban by using brand names, trade marks, emblems or other distinctive features of tobacco products Article 3: 1. w/o prejudice to Directive 89/552/EEC, **all forms of advertising and sponsorship shall be banned in the community** 5. This directive shall n/a to: □ Communications intended exclusively for professionals in the tobacco trade □ **The presentation of tobacco products offered for sale and the indication of their prices at the tobacco sales outlets** □ Advertising aimed at purchasers in establishments specialising in sale of tobacco products and on their shop-fronts or, in the case of establishments selling a wide variety of articles or services, at locations reserved for sale of tobacco products, and sales outlets which, in Greece, are subject to special system under which the licences are granted for social reasons □ The sale of publications containing advertising for tobacco products which are published and printed in third countries, where those publications are not principally intended for the community market
–> Art. 114 : -> public health?, internal market? - yes
Art. 114 : -> public health?, internal market? - yes
Germany Challenges Tobacco Advertising Directive before CJEU - arguments
- Argument 1:
(13) as regards, first, the characteristics of the market , the applicant submits that tobacco products advertising is essentially an activity whose effects don’t extent beyond borders of individual MS(14) whilst tobacco products advertising is often conceived by the manufacturer, the specific presentation of advertising media to consumers is result of strategy based on the particular features of each market. The decisions regarding the specific form of advertising, musical background, colours, and other features of advertising products is taken at national level so that they conform w cultural idiosyncrasies of each MS
(15) Trade in so-called advertising media (such as posters cinema advertising and advertising for the hotel and catering sector, for example, via parasols and ashtrays) b/w MS is practically non-existent and has to date not been subject to any restrictions. For tax reasons, advertising involving the free distribution is also limited to national markets.
-****> Tobacco advertising usually focused on national market -> Thus no internal market dimension'** - ****- Argument 2: (24) *that the applicant submits, is not the case here. **Given that the sole form of advertising allowed, namely advertising at the point of sale, accounts for only 2% of the tobacco industry's advertising expenditure, the Directive constitutes, in practice, a total prohibition of tobacco advertising. Consequently, instead of promoting trade in advertising media for tobacco products and freedom to provide services in that area, the Directive almost entirely negates those freedoms. Moreover, according to applicant, the Directive creates new obstacles to trade which didn't exist previously. Thus the prohibition of tobacco advertising makes it almost impossible to import and market new products and will result in stagnation of inter-state trade***
** -> Advertising ban creates new obstacles - instead of reducing them**
Argument 3: *(32) finally, the applicant submits that recourse to Art. 100a is not possible where the centre of gravity of a measure is focused not on promoting internal market but on protecting public health
(33) according to settled case law, the Community may not rely solely on Art. 100a when the measure to be adopted incidentally harmonises market conditions within the community (-> Cases)
(34) however, both legislative history of the Directive and its content and purpose show that the centre of gravity of the measure is public health protection* -> Art. 100a EC (then) = Article 114 TFEU (now) - >**The Directive is really abt protecting public health, and not mainly abt regulating internal market**
Germany Challenges Tobacco Advertising Directive before CJEU - ruling
-> The Directive is annulled (= declared invalid)
- Article 114 TFEU can be used to harmonise national laws if they touch on public health ○ But only if the enacted law is 'intended to improve the conditions for the est. and functioning of the internal market'' - By prohibiting advertising that does not have cross-border relevance, the Directive goes beyond the legislative competence provided by Article 114 TFEU - Court: ○ *'' On the one hand, although a directive prohibiting the advertising of tobacco products in periodicals, magazines and newspapers could be adopted on the basis of Article 100a of the Treaty with a view to ensuring the free movement of press products, for numerous types of advertising of tobacco products, the prohibition under Article 3(1) of the Directive cannot be justified by the need to eliminate obstacles to the free movement of advertising media or the freedom to provide services in the field of advertising. That applies, in particular, to the prohibition of advertising on posters, parasols, ashtrays and other articles used in hotels, restaurants and cafés, and the prohibition of advertising spots in cinemas, prohibitions which in no way help to facilitate trade in the products concerned. Moreover, the Directive does not ensure free movement of products which are in conformity with its provisions. On the Other hand, although appreciable distortion of competition could be a basis for recourse to Article 100a of the Treaty in order to prohibit certain forms of sponsorship, they are not such as to justify the use of that legal basis for an outright prohibition of advertising of the kind imposed by the Directive. Accordingly, the Community legislature cannot rely on the need to eliminate obstacles to the free movement of advertising media and the freedom to provide services or on the need to eliminate distortions of competition, either in the advertising sector or in the tobacco products sector, in order to adopt the Directive on the basis of the above articles.''*
Public health TFEU
- Article 168:
1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activitiesUnion action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health info and education, and monitoring, early warning of and combating serious cross-border threats to health
The Union shall complement MS action in reducing drugs-related health damage, including info and prevention.
2nd Tobacco Advertising Directive (2003/33/EC)
- Ban on tobacco advertising limited to advertising w cross-border relevance
- Provisions:
- The objective of this Directive is to approximate the laws, regulations and administrative provisions of the MS relating to advertising of tobacco products and their promotion
a) In press and other printed publications;
b) In radio broadcasting;
c) In info society services; and
d) Through tobacco related sponsorship, including the free distribution of tobacco products.2. This Directive is intended to ensure free movement of the media concerned and of related services and to eliminate obstacles to the operation of the Internal Market.
Article 5: Sponsorship of events
1. The sponsorship of events or activities involving or taking place in several MS or otherwise having cross border effects shall be prohibited.
Is fossil fuel advertising comparable to tobacco advertising?
Same types of harms: public health
ECI fossil fuel ban - ECI
○ European Citizen Initiative : platform under EU that gives citizens opportunity to launch proposal they want examined by Commission
- Submit legislative proposal - Needs min. 1 mil signatures - 7 MS needed
what did ECI organisers want, can you identify the reason ECI was unsuccessful
- Wanted fossil fuel ad ban
- didn’t get enough signaturesAnnex : *□ Our European Citizens’ Initiative (ECI) aims to achieve a ban on any fossil fuel advertising or sponsorship. Specifically, our ECI calls on the Europe Commission to propose to members states: - A ban on any promotion or advertising, direct or indirect, as well as any free or promotional distribution, or any sponsorship relationship: a) for any and all companies and associated sub brands or lobbying organisations that extract, refine, produce, supply, distribute, or sell any fossil fuels b) for any companies that promote the use of any fossil fuel powered air, road or maritime vehicles operating from fossil fuels, with the exception of vehicles dedicated to transport services of general economic interest c) of any fossil fuel products including oil, fossil gas, and coal*
According to ECI, shall fossil ad be fully banned? Or are there loopholes, why?
(Article 3 and 4)
Article 3
- Advertising in printed media and information society services
1) Advertising in the press and other printed publications shall be limited to publications intended exclusively for professionals in the fossil fuel trade and to publications which are printed and published in third countries, where those publications are not principally intended for the Community market. Other advertising in the press and other printed publications shall be prohibited.
2) Advertising that is not permitted in the press and other printed publications shall not be permitted in information society services.
Article 4
Audiovisual and/or radio advertising and sponsorship
1) All forms of audiovisual and/or radio advertising for fossil fuel products and fossil fuel undertakings shall be prohibited.
Audiovisual and/or radio programmes shall not be sponsored by fossil fuel products and fossil fuel undertakings.
Read Article 1 (ECI fossil fuel): what type of ban do citizens want + why does it say objective is to approximate national laws on fossil fuel advertising if intention seems to be to ban fossil ad
Makers of proposal ‘copying’ tobacco ad ban format
- Political: Already successful example - good template
- Legal: tobacco ad ban successfully created under Art. 114 - > mirror it
- ○ Article 1:
Subject-matter and scope
1. The objective of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to the advertising of fossil fuel products, fossil fuel undertakings, and their promotion:
a) in the press and other printed publications;
b) in all forms of audiovisual commercial communications;
c) in radio broadcasting;
d) in information society services; and
e) through fossil fuel-related sponsorship, including the free or discounted distribution of fossil fuel products.
2. Audiovisual media services or programmes shall not be sponsored by undertakings whose principal activity is the extraction, refining, supply, distribution or sale of fossil fuels or fossil fuel products as defined in Article 2(b) below.
3. This Directive is intended to ensure the free movement of the media concerned and of related services and to eliminate obstacles to the operation of the Internal Market.*
Does legal proposal conform to principle of conferral
Principle of conferral:
Art 5 TEU:
1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
2. ** Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States**. 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. Article 5 TFEU: 1. The **limits of Union competences are governed by the principle of conferral.** The use of Union competences is governed by the principles of subsidiarity and proportionality. 2. **Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.**
—> Union can only act if it has competence to do so
□ Granted by treaty
—> Art. 114(1) or 192(1)
Are TFEU Art. 114(1) or 192(1) viable legal basis for Dir. banning fossil fuel advertising:
→ TFEU Art. 114(1):
1. Save when otherwise provided in the Treaties, the following provisions shall apply for the achievement of objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance w the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt measures for the approximation of the provisions laid down by the law, regulation or administrative action in MS which have as their objective the establishment and functioning of internal market
-> Authorises EU to act on approximation/harmonisation of MS laws for functioning of internal market
- internal market:
economic market across borders - e.g. worker in NL should have same rights as worker in Poland, product same laws in diff countries
-> viable legal basis
- E.g. If Germany bans, Spain doesn’t -> for example a F1 race w ads in Spain couldn’t be shown on TV broadcast in Germany - restricts internal market
→ TFEU 192(1): * 1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.* -> Authorises EU legislators to decide what measures (legislate) to be taken to achieve art. 191 (generally about environmental protection) objectives (environmental legislation) -> Viable legal basis - Fossil ad ban would discourage fossil fuel industry producing and stuff and climate change because environmental protection
-» 2 viable basis that proposal could be linked to
□ The proposal only linked to TFEU Art. 114(1)
- seems more obvious
- But has more limitations cross-border limitations
◊ 192(1) Does not
- 192(1) has precedence
Fictional case : A new EU directive is proposed which would require cigarette-like warnings at gas stations
Evaluate the legality under TFEU Art. 114(1)
→ TFEU Art. 114(1)
free movement of goods and services internal market
**Issue: **
▪ can EU directive is proposed which would require cigarette-like warnings at gas stations have legal basis under TFEU Art. 114(1)
Rule: **
▪ TFEU Art. 114(1)
□ ‘‘Save when otherwise provided in the Treaties, the following provisions shall apply for the achievement of objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance w the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt measures for the approximation of the provisions laid down by the law, regulation or administrative action in MS which have as their objective the establishment and functioning of internal market’’
**Application: **
not really cross border situation or like have impact i guess
□ Could be if there’s two gas stations really close on Austria-Germany border e.g. -> not really issue in large scale
□ Shell gas stations in different countries -> i missed this part
More of local ad ban -> doesn’t really affect internal market movement
**Conclusion: **
not really viable legal basis
Fictional case : A new EU directive is proposed which would require cigarette-like warnings at gas stations
Evaluate the legality under TFEU Art. 192(1)
**Issue: **
▪ can EU directive is proposed which would require cigarette-like warnings at gas stations have legal basis under TFEU 192(1)
** Rule: **
TFEU 192(1):
□ ‘‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.’’
Application:
▪ Has environmental purpose - achieves objective referred to in Article 191
Conclusion :
yes
Fictional case : can EU enact tax on meat sold to consumers
Evaluate legality of proposals under : TFEU Art. 168(1)
** Issue: **
▪ Can EU enact an indirect tax on meat under TFEU Art. 168(1)
Rule:
▪ TFEU Art. 168(1) :
*1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities
Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health info and education, and monitoring, early warning of and combating serious cross-border threats to health The Union shall complement MS action in reducing drugs-related health damage, including info and prevention.*
Application
▪ Could be if you can prove meat tax is actually beneficial for public health but EU only has complimentary competence
□ Cannot create public health law can only help MS □ Cannot create big rules, but stuff like help
**conclusion: **
does not provide basis, because complimentary so does not allow to legislate
Tax -> reduced consumption -> animals benefit
Fictional case : can EU enact tax on meat sold to consumers - Evaluate legality of proposals under : TFEU Art. 113 and 114(1),
both Internal market provisions
▪ But have substantive difference:
□ 114(1) allows any measures necessary to harmonise for functioning of internal market
□ 113 about harmonising indirect taxation (product tax) if necessary for functioning of internal market (meat tax indirect)
▪ 113: □ *''The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties, and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition''* □ If Germany has high VAT and France low products cheaper in France -> makes sense to harmonise for indirect market
Procedural difference:
□ 114(1): ordinary legislative procedure
□ 113: special legislative procedure
-> rule under113 is harder to pass than under 114(1):
- 113 can be outvoted because every MS could block the law and it’s hard to pass these laws because usually there is a MS that votes against
- Lex specialis: specific legislation prevails
-> also 114(1) says u can harmonises under 114(1) unless there is one that applies specifically (like 113)
**Conclusion: **
□ 114(1): does not apply bc lex specialis
□ 113: applicable ->
- meat tax is indirect tax -> 113 applies
harmonises competitive imbalances so has the basis for the functioning of internal market
Tax -> reduced consumption -> animals benefit
