The 15 individual EU member states have three years in which to incorpo- rate the ban into national legislation and eight years in which to enforce a total ban.
In the industry's first effort to fight back since the directive became European law, four U.K. companies - rep- resented by the Tobacco Manufacturers' Association - have appealed to the U.K. High Court to send the directive back to the European Court of Justice in Lux- embourg.
The companies - British American Tobac- co Investments, Gallaher, Imperial and Rothmans (UK) - argue the ban is illegal and violates several principles of Euro- pean Community Treaty law.
Already this summer, the Economic Minis- try of Germany (which opposed the ban in its final vote) announced it would contend the new law, fearing it would lead to other EU ad restrictions - on alcohol and cars, for example.
National courts don't have the power to declare Community legislation invalid, but if a national court considers it to be arguable, it can refer the matter to the ECJ for a declaration on validity.
The U.K. companies will argue in the High Court against the validity of the ban on the basis that: it is a public health measure, not an internal market issue, and therefore does not come under EU law; it impacts adversely on freedom of expression; its severity is dispro- portionate to its objectives, and it goes against the principle of subsidi- arity - that the Community may only act where the objectives cannot be sufficient- ly achieved by member states or can be bet- ter achieved by Community action.
The ban "is totally unjustified," says David Swan, chief executive of the TMA, speaking on behalf of the tobacco compa- nies involved in this case. "We will vig- orously challenge the basis on which these restrictions to a legal product are being introduced."
He adds that legal experts, including the European Parliament's Legal Affairs Commit- tee and the European Council's own legal advisers, also believe the restrictions "do not have a sound basis in law."
The TMA also points to evidence from countries such as Norway, where curbing tobacco advertising was followed by an increase in tobacco consumption.
The Confederation of European Community Cigarette Manufacturers was not prepared to comment, but a spokeswoman said the trade body was not aware of any other ac- tion by tobacco marketers in any other countries.
Copyright September 1998, Crain Communications Inc.