Updated: Jan 8, 2022
Germany v EP and Council
LEGAL BASE: SCOPE ART. 144 TFEU
PUBLIC HEALTH: SHARED COMPETENCE
A Directive for the prohibition of tobacco advertising and sponsoring had as legal base Art. 114 TFEU, the harmonisation of the internal market. Germany argues that this is the wrong legal bae as there is no real trade problem. It argues that the real objective of the directive is public health. Public Health is a shared, which at the time of the judgement did not allow harmonisation (Art. 168 TFEU).
How Important is the substantive purpose behind the harmonisation, in this case Public health ?
→ It is not important. Art. 114 TFEU can be used as a legal base IF there are potential/real obstacles to the market AND if there is an improvement of the international market or its conditions. So it is not required that the internal market is not the main purpose.
In Casu: The conditions of Art. 144 TFEU are not fulfilled, thus the directive is annulled. Germany wins the case. (>< Tobacco II case concerns the new directive that has a limited scope and respects the conditions of the internal market)