1. WHO Framework Convention on Tobacco Control

At the international level, a tobacco advertising ban is prescribed by the WHO Framework Convention on Tobacco Control (FCTC), which was adopted in 2003. ^{Footnote 91} The objective of the FCTC is “to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke” and thereby to “protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke”. ^{Footnote 92}

The FCTC takes a comprehensive approach to the regulation of tobacco, encompassing measures to reduce both supply and demand. Supply-related measures concern the illicit trade in tobacco products, sales to and by minors and the provision of support for economically viable alternative activities for tobacco farmers. ^{Footnote 93} Demand measures include price and tax measures, the protection from exposure to tobacco smoke, the regulation of the contents of tobacco products and of tobacco product disclosures, the packaging and labelling of tobacco products, education, communication, training and public awareness and demand reduction measures concerning tobacco dependence and cessation. The FCTC explicitly states that tobacco control policy must be protected from the influence of the tobacco industry. The Preamble identifies “the need to be alert to any efforts by the tobacco industry to undermine or subvert tobacco control efforts”. ^{Footnote 94}

The regulation of advertising, promotion and sponsorship plays an important role in the comprehensive approach to tobacco control taken by the FCTC. It is considered a demand-oriented measure, though it is sometimes also viewed as a supply-side instrument, as it concerns actions of the tobacco industry. ^{Footnote 95} Article 13(2) FCTC holds that “[e]ach Party shall … undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship”. The requirement is developed in more detail in implementation guidelines. ^{Footnote 96} They specify that an effective, comprehensive ban should cover all tobacco advertising, promotion and sponsorship and all forms of communications or contributions that have the aim, effect or likely effect to directly or indirectly promote tobacco use. ^{Footnote 97} It should “address all persons or entities involved in the production, placement and/or dissemination of tobacco advertising, promotion and sponsorship”. ^{Footnote 98} The guidelines emphasise that “contemporary marketing communication involves an integrated approach” that covers all forms of advertising and promotion. Consequently, a limited advertising ban will easily be circumvented, as “the tobacco industry inevitably shifts its expenditure”. ^{Footnote 99} The ban should cover “advertising and promotion of tobacco brand names and all corporate promotion” (ie corporate image advertising even if it does not seem to promote a specific product). The ban should also include “brand stretching”, which “occurs when a tobacco brand name, emblem, trademark, logo or trade insignia or any other distinctive feature … is connected with a non-tobacco product or service in such a way that the tobacco product and the non-tobacco product or service are likely to be associated”. ^{Footnote 100} The guidelines emphasise that the harmful effect of tobacco advertising goes beyond the direct promotion of tobacco products. Instead, its harm lies in “giving the impression that tobacco use is socially acceptable”. ^{Footnote 101}

The guidelines also recommend that governments “should ban contributions from tobacco companies to any other entity for ‘socially responsible causes’, as this is a form of sponsorship”. ^{Footnote 102} It further explains: “It is increasingly common for tobacco companies to seek to portray themselves as good corporate citizens by making contributions to deserving causes or by otherwise promoting ‘socially responsible’ elements of their business practices.” ^{Footnote 103} And: “Tobacco companies may also seek to engage in ‘socially responsible’ business practices (such as good employee–employer relations or environmental stewardship), which do not involve contributions to other parties. Promotion to the public of such otherwise commendable activities should be prohibited, as their aim, effect or likely effect is to promote a tobacco product or tobacco use either directly or indirectly.” ^{Footnote 104}

2. The tobacco advertising ban in the EU and in the Member States

Tobacco advertising has been subject to restrictions in Europe for more than half a century. Italy passed the first tobacco advertising ban in 1962. ^{Footnote 105} Comprehensive bans were first enacted in the early 1970s by Finland, Iceland and Norway. ^{Footnote 106} From the 1980s onwards, European countries adopted increasingly stringent restrictions, though with significant differences between them. ^{Footnote 107} The first EU-wide ban on tobacco advertising and sponsorship, limited to television, was enacted by the Television without Frontiers Directive (1989). ^{Footnote 108} It was complemented a decade later by the Tobacco Advertising Directive I, which established a comprehensive ban for all remaining forms of such advertising, ranging from print media, radio and the Internet to billboards and tobacco brand logos on ashtrays and parasols. ^{Footnote 109} However, the Directive was successfully challenged by the German government, under the influence of the tobacco industry. ^{Footnote 110} In the judgment Tobacco Advertising I (2000), the Court of Justice of the European Union (CJEU) ruled that a ban extending to advertising with no cross-border effects exceeded the EU’s legislative competence under Article 114 TFEU. ^{Footnote 111} That provision, which will be discussed in more detail in a later section, allows for the harmonisation of national laws, but only to the extent that this is necessary for the functioning of the internal market. As a consequence, the more limited Tobacco Advertising Directive II was enacted in 2003. ^{Footnote 112} A further legal challenge against this measure failed (Tobacco Advertising II, 2006). ^{Footnote 113}

Today, the three central instruments of tobacco advertising regulation at the EU level are the Tobacco Advertising Directive II, the Audiovisual Media Services Directive (AVMSD) and the Tobacco Products Directive. The AVMSD lays down a comprehensive ban on tobacco advertising on television, prohibiting “all forms of audiovisual commercial communications for cigarettes and other tobacco products”. ^{Footnote 114} According to its preamble, this includes indirect advertising that does not directly mention a tobacco product but contains brand names and symbols “of tobacco products or of undertakings whose known or main activities include the production or sale of such products”. ^{Footnote 115} Consequently, corporate image advertising is also included in the ban. The AVMSD also bans sponsorship “by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products”. ^{Footnote 116}

The Tobacco Advertising Directive II covers advertising in print media, on the radio and online. ^{Footnote 117} As a consequence of the Tobacco Advertising I judgment, advertising without a significant cross-border relevance is not covered. This includes advertising on billboards and in cinemas. The Directive lays down a near-comprehensive ban on tobacco advertising, exempting only advertising in tobacco trade journals, as well as print media from third countries not intended for the Union market. ^{Footnote 118} The term “advertising” describes “any form of commercial communications with the aim or direct or indirect effect of promoting a tobacco product”, ^{Footnote 119} and therefore it also covers corporate image advertising. The Directive also prohibits sponsorship of events that take place in multiple Member States or that have a cross-border effect, such as international sporting or cultural events. Finally, the Tobacco Products Directive lays down a near-comprehensive advertising ban for electronic cigarettes, following the approach of the Tobacco Advertising Directive II and the AVMSD. ^{Footnote 120}

The Member States retain discretion to regulate advertising in the areas not covered by the EU measures. This essentially concerns forms of advertising with no significant cross-border effect, such as billboards. Most Member States have also enacted comprehensive advertising bans in these areas, as required by the FCTC. ^{Footnote 121}

Summing up, it has been shown that advertising restrictions form an integral part of the system of tobacco control established by the FCTC. The convention is adamant that the influence of the tobacco industry on policymaking and public discourse must be contained as much as possible. Consequently, tobacco advertising restrictions are comprehensive in their scope, prohibiting both direct promotion of tobacco products as well as indirect advertising, including image and advocacy advertising and sponsorship.

1. The legislative competence of the EU and the Member States to enact a fossil fuel advertising ban

Depending on the subject area, the competence to enact legislation is either held exclusively by the EU or the Member States or is shared between them. ^{Footnote 122} As discussed earlier, a fossil fuel advertising ban aims at the protection of health, the environment, consumers and the democratic process. The competence to legislate in the fields of environmental and consumer protection is shared between the EU and the Member States. ^{Footnote 123} This means that both the EU and the Member States can enact legislation in these fields, though the latter can do so only to the extent that the matter has not been comprehensively regulated at the European level. ^{Footnote 124} By contrast, the competence to legislate in the field of health lies with the Member States. ^{Footnote 125} However, national health regulation can be harmonised at the EU level if necessary for the functioning of the internal market, as will be discussed further below. Finally, the protection of the democratic process is a procedural objective that both the EU and the Member States must pursue within their respective areas of competence.

As mentioned earlier, the EU has already enacted a significant number of advertising restrictions. Most of them are based on Article 114 TFEU. ^{Footnote 126} The provision authorises the European legislators to harmonise national norms if the European measure has as its “object the establishment and functioning of the internal market”. The CJEU has interpreted the requirement in Tobacco Advertising I as meaning that the measure must contribute to the elimination of obstacles to the exercise of the economic freedoms guaranteed by the EU’s internal market rules or remove appreciable distortions of competition in the internal market. ^{Footnote 127} Article 114 TFEU is not restricted to a specific subject area. Instead, it authorises harmonising measures in any regulatory field, as long as the European measure creates or improves the internal market. This includes measures in the fields of health, environmental protection and consumer law. ^{Footnote 128}

In evaluating whether a measure meets the requirements of Article 114 TFEU, the CJEU usually grants a broad scope of discretion to the European legislator. ^{Footnote 129} It authorises the use of Article 114 TFEU not only in situations where differences between national measures already obstruct the internal market, but also for “preventive harmonization” ^{Footnote 130} (ie to prevent the future emergence of obstacles, provided that this is a likely prospect ^{Footnote 131} ). At the same time, the scope of Article 114 TFEU is not limitless, as the CJEU emphasised in Tobacco Advertising I. The European legislator must provide a plausible justification of how an advertising restriction serves the objective of Article 114 TFEU. This is illustrated by the reasons given by the European legislator for the bans contained in the Tobacco Advertising Directive II. According to its preamble, the ban on advertising in print media is justified on the ground that it ensures the cross-border circulation of these media products. ^{Footnote 132} The ban on sponsorship with cross-border relevance serves to eliminate distortions of competition. ^{Footnote 133} Finally, the ban on tobacco advertising on the radio and online is justified on the ground that “[t]obacco advertising by both these media has, by its very nature, a cross-border character, and should be regulated at Community level”. ^{Footnote 134} The CJEU confirmed in Tobacco Advertising II that these reasons are valid. ^{Footnote 135}

Importantly, European legislation must conform to the principle of proportionality. ^{Footnote 136} It requires that the measure is appropriate for attaining the objectives pursued by the legislation and does not exceed the limits of what is necessary. ^{Footnote 137} When there is a choice between several appropriate measures, the least onerous must be chosen, and the disadvantages caused must not be disproportionate to the aims pursued. When evaluating the proportionality of European legislation, attention must be paid to the fact that European law requires a high level of protection in the areas of health, environment and consumer rights. ^{Footnote 138} Moreover, the precautionary principle authorises the European legislator to take action if there is a likelihood of real harm to health and the environment, even though the scientific evidence does not allow for determining this risk with certainty. ^{Footnote 139} In the presence of scientific evidence indicating the existence of potential risks, the European legislator may be required to act to ensure a high level of protection. ^{Footnote 140} In the light of these requirements, the CJEU typically grants a broad scope of discretion to the European legislator when evaluating the proportionality of a measure. ^{Footnote 141} It usually limits itself to scrutinising whether the measure does not manifestly exceed the limits of what is necessary in order to achieve the objective pursued by the measure in question. ^{Footnote 142} In judgments such as Société Neptune Distribution, Deutsches Weintor and Pillbox 38, the CJEU found that restrictions on labelling and advertising were justifiable on grounds of protecting public health and proportional to the objective. ^{Footnote 143} In the latter case, the CJEU found the advertising ban on electronic cigarettes laid down in the Tobacco Products Directive to be proportionate, reasoning that an advertising ban “means that consumers … are confronted with fewer commercial inducements to purchase and consume electronic cigarettes with the result that they are less exposed to the identified or potential risks to human health to which those products could give rise”. ^{Footnote 144}

A fossil fuel advertising ban can be based on Article 114 TFEU if it is necessary for the functioning of the internal market as defined in the CJEU’s case law. This can plausibly be argued: differences in the regulation of fossil fuel advertising between the Member States already exist, since France has enacted a ban in 2022. The adoption of further restrictions by the Member States is likely, especially given that demand-reduction strategies are increasingly playing a central role in climate policy. In determining whether a fossil fuel advertising ban is proportional to the pursued objectives, it must be considered that existing mitigation measures are insufficient in the light of the Paris objectives. It therefore cannot be assumed that an advertising ban exceeds what is necessary, especially given the EU’s obligation to achieve a high level of protection of health, the environment and consumers. An advertising ban can also be considered as a less restrictive alternative to a sales ban on fossil fuels or other carbon-intensive products. Finally, the experience of tobacco control shows that an advertising ban must be comprehensive, as otherwise it is easy to circumvent. Consequently, a merely partial ban cannot be assumed to be a less restrictive alternative to a full ban.

Within the scope of shared competences, Member States remain competent to legislate in areas that have not been comprehensively harmonised by the EU. For example, various Member States have enacted advertising restrictions on products such as alcohol, gambling and betting. ^{Footnote 145} As the EU has not yet harmonised rules on fossil fuel advertising, Member States remain competent to legislate in that area. National advertising bans must be designed in a way that does not unduly restrict the economic freedoms guaranteed by EU internal market law. This issue will be discussed in more detail further below.

Summing up, both the EU and the Member States are competent to enact a fossil fuel advertising ban. Article 114 TFEU provides a viable legal basis for such a ban at the EU level.

2. Freedom of commercial speech

The freedom of expression is protected under Article 10 European Convention on Human Rights (ECHR) and Article 11 Fundamental Rights Charter (FRC).

The ECHR binds the institutions of the Member States, all of which are parties to the Convention. According to the case law of the European Court of Human Rights (ECtHR), the protection of the freedom of speech under Article 10 ECHR extends to commercial speech, including advertising. ^{Footnote 146} Advertising restrictions can therefore violate Article 10 ECHR. However, the protection of the freedom of speech is not absolute. According to Article 10(2) ECHR, freedom of speech can be restricted if three conditions are met. First, the restriction must be prescribed by law. Second, the restriction must pursue a legitimate aim. Policy objectives that can justify restrictions of the freedom of expression are listed exhaustively in Article 10(2) ECHR, and they include the protection of health and of the rights of others. Third, the restriction must be “necessary in a democratic society”. According to the ECtHR, this implies the existence of a “pressing social need” ^{Footnote 147} and the proportionality of the measure to the aim pursued. National authorities must give “relevant and sufficient” reasons to justify the restriction. ^{Footnote 148} When evaluating the proportionality of a general measure, the ECtHR primarily assesses the underlying legislative choices. ^{Footnote 149} According to the Court, the “quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation”. ^{Footnote 150} And: “[T]he more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case.” ^{Footnote 151} The central question to be answered is not whether less restrictive measures are available to the legislator. Instead, “the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it”. ^{Footnote 152}

The ECtHR affords a significantly lower level of protection to commercial speech than to political speech. ^{Footnote 153} National authorities have a broad margin of discretion in enacting restrictions to commercial speech, as the judgment markt intern Verlag GmbH and Klaus Beermann (1989) illustrates. ^{Footnote 154} It dealt with the case of a trade journal that had published negative and unproven information about a company and had been convicted of dishonest trade practices under the German Unfair Competition Act. The ECtHR ruled that the judgment did not violate Article 10 ECHR. The ECtHR accepted that the national rule could be justified as a measure protecting the reputation and the rights of others, which is one of the grounds listed in Article 10(2) ECHR. ^{Footnote 155} Concerning the necessity of the measure, the Court held that national authorities have to weigh the competing interests at stake. ^{Footnote 156} It emphasised that the national authorities have a significant margin of appreciation in conducting this balancing exercise: “Such a margin of appreciation is essential in commercial matters and, in particular, in an area as complex and fluctuating as that of unfair competition.” ^{Footnote 157}

The broad margin of appreciation extends to advertising restrictions. This is illustrated by the judgment Casado Coca v Spain (1994), which dealt with rules of the Spanish bar association prohibiting advertising by lawyers and which were found not to violate Article 10 ECHR. ^{Footnote 158} The ECtHR accepted that the restrictions were “designed to protect the interests of the public while ensuring respect for members of the Bar” and therefore justifiable under Article 10(2) ECHR. ^{Footnote 159} Regarding the necessity of the restrictions, the Court emphasised the broad margin of appreciation left to national authorities. ^{Footnote 160} While advertising may benefit citizens “a means of discovering the characteristics of services and goods offered”, it “may sometimes be restricted, especially to prevent unfair competition and untruthful or misleading advertising”. ^{Footnote 161} Moreover, “[i]n some contexts, the publication of even objective, truthful advertisements might be restricted in order to ensure respect for the rights of others or owing to the special circumstances of particular business activities and professions”. ^{Footnote 162} Given that there is no European consensus on the matter, the margin of appreciation is particularly broad. ^{Footnote 163}

Restrictions on advertising can violate Article 10 ECHR if the national authorities fail to strike a fair balance between the affected interests. This is illustrated by the case Sekmadienis Ltd. v. Lithuania (2018), which dealt with a decision prohibiting advertising of a clothing company referring to religious figures as contrary to public morals. ^{Footnote 164} According to the ECtHR, the national authorities had granted absolute primacy to protecting the feelings of religious people, without adequately taking the advertiser’s freedom of expression into account. ^{Footnote 165}

The ECtHR had to deal with national restrictions on tobacco advertising in the cases Société de conception de presse et dʼédition et Ponson v. France and Hachette Filipacchi Presse Automobile et Dupuy c. France (2009). ^{Footnote 166} Two magazines had published photographs of race car driver Michael Schumacher. In the photographs the logo of his sponsor, Marlboro, a tobacco brand, was visible. One photograph caption also referred to the driver’s wealth. The magazines were fined for violating the French Loi Evin, which prohibits the promotion of tobacco products. The ECtHR noted that tobacco advertising restrictions formed an essential part of the broader tobacco control strategy and highlighted the importance of protecting public health “from the scourge of smoking”. ^{Footnote 167} The Court held that the impact of promoting tobacco in the context of sport and success, particularly on young people, must be taken into account. ^{Footnote 168} The Court also noted that the magazines could have easily avoided a fine by blurring the logo on the photographs. ^{Footnote 169} The ECtHR concluded that the measures responded to a pressing social need and were not disproportionate to the legitimate aim pursued. ^{Footnote 170} They could be considered “necessary in a democratic society” and therefore did not violate Article 10 ECHR. It is interesting to note that, according to the ECtHR, it is not necessary to determine the actual impact of advertising on consumption when evaluating the proportionality of the advertising restriction. The fact that the communications were likely to incite people and especially the young to smoke was considered a “relevant and sufficient” reason to justify the restriction. ^{Footnote 171}

The FRC applies to the acts of EU institutions, including legislative acts. Moreover, it applies to Member States “when they are implementing Union law”. ^{Footnote 172} The latter requirement has been interpreted expansively by the CJEU. Whenever a national measure is challenged as a restriction of the economic freedoms protected under internal market law and the Member State seeks to justify it on overriding reasons in the public interest, the measure is considered to implement Union law. ^{Footnote 173} Given that the scope of internal market law itself is broad, this means that most if not all national measures regulating advertising will fall under Article 11 FRC. Article 11 FRC corresponds to Article 10 ECHR, having the same meaning and scope. ^{Footnote 174} Like Article 10 ECHR, the freedom of expression protected by Article 11 FRC can be limited. Restrictions must be provided for by law and protect the essence of the freedom of expression. ^{Footnote 175} Moreover, they are subject to the requirement of proportionality, which means that they must be necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

According to the CJEU’s case law, the essence of the freedom of expression is not affected by labelling and advertising restrictions if it is limited to a clearly defined area and does not make communications about product information impossible. ^{Footnote 176} In evaluating whether a restriction is proportional, the Court scrutinises whether a “fair balance” has been struck between the various fundamental rights affected and the legitimate general interest objectives that the measure seeks to advance. ^{Footnote 177} Both European and national legislators enjoy a margin of discretion in determining whether there is a pressing social need that may justify a restriction on the freedom of expression. ^{Footnote 178} In Société Neptune Distribution, which dealt with food labelling restrictions, the CJEU held that the goal of ensuring that consumers have the most accurate and transparent information is closely related to the protection of health and can consequently justify limitations on the freedom of expression. ^{Footnote 179} In Philip Morris Brands SARL (2016), the CJEU had to evaluate whether labelling restrictions under the Tobacco Products Directive violated Article 11 FRC. The Directive bans a significant list of elements from cigarette packets, including features that promote a tobacco product by creating an erroneous impression about its characteristics or health effects, suggest that the product has various benefits or refer to flavourings. ^{Footnote 180} According to the CJEU, the freedom of the undertaking to disseminate information in pursuit of its commercial interests is outweighed by the objective of ensuring a high level of protection of health. The presence of mandatory health warnings on the packet does not negate the necessity to enact further measures. In fact, marketing claims that suggest some benefits of tobacco products can undermine consumer awareness of the risks associated with smoking. ^{Footnote 181}

A fossil fuel advertising ban restricts the freedom of commercial speech. However, the restriction can be justified on grounds of the protection of health, the environment, consumers and the democratic process, all of which form important objectives of the EU. The example of tobacco advertising regulation shows that even a near-comprehensive advertising ban can be considered proportional in the light of important public interests. Given that tobacco and fossil fuel advertising are comparable in important aspects, the same considerations apply for a fossil fuel advertising ban.

3. Freedom to conduct a business

Article 16 FRC recognises the “freedom to conduct a business in accordance with Union law and national laws and practices”. It covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition. ^{Footnote 182} Moreover, it includes the right to freely use the economic, technical and financial resources available to the undertaking. ^{Footnote 183} Like all Charter freedoms, Article 16 FRC can be restricted if the limitation is provided for by law, is justified on grounds of general interest, is proportional and respects the essence of the freedom. The CJEU held in this regard: “[T]he freedom to conduct a business does not constitute an unfettered prerogative, but must be examined in the light of its function in society. The freedom to conduct a business may thus be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest.” ^{Footnote 184}

Labelling requirements and advertising restrictions constrain the freedom to conduct a business. ^{Footnote 185} According to the CJEU, this is because such requirements restrict the free use of the undertaking’s resources at their disposal, as the requirement may represent a significant cost and may have a considerable impact on the business. ^{Footnote 186} However, they can be justified on important policy grounds, such as the protection of health and of consumers. ^{Footnote 187} The CJEU repeatedly held that labelling and advertising requirements do not affect the essence of the right to conduct a business because they do not limit the production or sale of products. ^{Footnote 188} The proportionality analysis conducted under Article 16 FRC is the same as that under Article 11 FRC. ^{Footnote 189} In essence, the Court investigates whether the legislator has sought to strike a fair balance between the various affected fundamental rights. ^{Footnote 190} In Deutsches Weintor, the CJEU found the prohibition of health claims on alcoholic beverages to be justified on grounds of health protection and proportional. The case concerned the promotion of wine as “easily digestible”. According to the Court, consumers are influenced by such claims, which therefore can lead to increased consumption. ^{Footnote 191} The Court held that “[i]t is essential that all claims in relation to [alcoholic] beverages are entirely unambiguous, so that consumers are in a position to regulate their consumption while taking into account all the inherent dangers associated with such consumption, and in so doing to protect their health effectively”. ^{Footnote 192} It notes that the advertising claim in question is silent as to the fact that, regardless of sound digestion, the dangers inherent in the consumption of alcoholic beverages are not in any way removed, or even limited.” ^{Footnote 193} The CJEU concluded that the European legislators were justified in banning health claims on alcoholic beverages.

An illustrative example of the application of Article 16 FRC to advertising restrictions is Pillbox 38 (2016). In this case, the CJEU had to evaluate, inter alia, the validity of the near-comprehensive advertising ban on electronic cigarettes laid down by the Tobacco Products Directive. The CJEU established that the ban does not affect the essence of Article 16 FRC, as it does not prevent economic operators from manufacturing and selling electronic cigarettes. ^{Footnote 194} The ban also does not exceed the limits of what is appropriate and necessary to achieve the legitimate objectives pursued by the Tobacco Products Directive, namely to harmonise national rules that hinder free movement and are liable to distort competition, while ensuring a high level of protection of public health. ^{Footnote 195} The advertising ban therefore meets the conditions of Article 52(1) FRC and is thus consistent with Article 16 FRC.

Similar considerations will apply to a fossil fuel advertising ban. Given that it does not restrict sales, it does not affect the essence of the right to conduct a business. The proportionality of the measure in the light of its regulatory objectives has already been discussed earlier. A fossil fuel advertising ban, particularly if it follows the example of the tobacco advertising ban, is thus likely to be compatible with the freedom to conduct a business under Article 16 FRC.

4. A national fossil fuel advertising ban in the light of EU internal market law

EU internal market law guarantees the right to freely move goods across borders and to provide and receive services in a cross-border context. These rights are enshrined in Articles 34 and 56 TFEU. Article 34 TFEU is relevant for advertising restrictions on goods, such as fossil fuels or petrol-powered cars, whereas Article 56 TFEU is relevant for advertising restrictions on services, such as air travel. The provisions can be invoked directly by individuals and corporations in national courts against national legislation and administrative action that restrict these freedoms. ^{Footnote 196} The analysis of restrictions under internal market law is essentially identical to that conducted under Article 16 FRC. ^{Footnote 197}

Article 34 TFEU prohibits quantitative restrictions on imports of goods, as well as measures having an equivalent effect. The prohibition extends to any national measure that is liable to directly or indirectly, actually or potentially restrict the free movement of goods, as the CJEU ruled in Dassonville (1974). ^{Footnote 198} Exempt from this broad scope are measures that do not require alterations of the goods and merely affect the conditions of how they are sold, the so-called “selling arrangements” (Keck, 1993). ^{Footnote 199} The exemption applies as long as the national measure affects domestic and non-domestic products alike, in both law and fact. National measures that do not benefit from the Keck exemption may nonetheless be justified on overriding grounds of public interest. Article 36 TFEU provides an illustrative list of justifications: “grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property”. Additional justifications recognised by the CJEU include environmental and consumer protection. ^{Footnote 200}

Article 56 TFEU prohibits restrictions on the freedom to provide and receive services. The CJEU interprets the scope of the ban expansively, covering all national measures that make the provision of services with a cross-border component less attractive than in a comparable domestic situation. ^{Footnote 201} Restrictive measures can be justified on overriding grounds of public interest. These include, but are not limited to, the grounds listed in Article 52 TFEU, namely “public policy, public security or public health”.

Justifiable restrictions on economic freedoms must also meet the proportionality requirement, which has two aspects. ^{Footnote 202} First, the national measure must be suitable to achieve the stated policy objective, which excludes measures that are wildly inconsistent or that use the public policy objective as a mere pretext to disfavour the cross-border provisions of goods or services. Second, the restrictive effect must not go beyond what is necessary to achieve the objective. In the absence of harmonised rules, Member States have the right to determine the level of protection they wish to afford to their citizens. ^{Footnote 203} This also implies a considerable degree of discretion in choosing the regulatory means to achieve that objective. In doing so, however, they need to pay attention to potential adverse transnational effects of their choices and prevent them to the extent possible.

The CJEU dealt with advertising restrictions in a number of judgments. ^{Footnote 204} The case Aragonesa de Publicidad Exterior (1991) concerned a Catalonian ban on the promotion of alcoholic drinks of more than twenty-three degrees (ca. 13%) alcohol content in mass media, on streets and highways, in cinemas and on public transport. ^{Footnote 205} The Court found the measure not to be precluded by internal market law. ^{Footnote 206} According to the CJEU, the ban was a suitable means to protect public health, arguing that “advertising acts as an encouragement to consumption and the existence of rules restricting the advertising of alcoholic beverages in order to combat alcoholism reflects public health concerns”. ^{Footnote 207} Regarding the necessity of the measure, the Court pointed out that the freedom of trade is restricted only to a limited extent, and it held that a prohibition of promoting strong alcoholic drinks “does not appear to be manifestly unreasonable as part of a campaign against alcoholism”. ^{Footnote 208} The case De Agostini (1997) concerned a Swedish ban on television advertising targeting children under twelve years of age. ^{Footnote 209} While the ban applied without distinction to domestic and foreign service providers alike, the Court held that an advertising ban might affect imported goods more severely than domestic ones, as the latter may benefit from greater familiarity among consumers. Consequently, the Keck exemption did not apply. However, the advertising ban was held to be justifiable on overriding grounds in the public interest, such as the protection of vulnerable consumers, if implemented in a proportional manner. ^{Footnote 210} The case Gourmet International Products dealt with a Swedish ban on advertising for alcoholic beverages containing more than 2.25% of alcohol by volume. The CJEU noted that this ban effectively prohibited producers and importers from advertising to consumers, with very few exceptions. ^{Footnote 211} This makes the ban liable to impede market access for imported products more than for domestic products, with which consumers are more familiar. The Keck exemption was therefore inapplicable. However, the Court found that the measure could be justified on grounds of the protection of public health against the harmful effects of alcohol, unless it is apparent that the same objective could be achieved with measures that are less restrictive to cross-border trade. ^{Footnote 212} In Bacardi France v TF1 (2004), which concerned restrictions on advertising for alcoholic beverages at sports events, the CJEU emphasised that Member States have a considerable margin of discretion in deciding on the level of protection that they wish to afford to public health and on the means by which that protection is to be achieved. ^{Footnote 213}

In the judgment Philip Morris Norway (2011), the European Free Trade Association (EFTA) Court had to deal with advertising restrictions on tobacco. ^{Footnote 214} The EFTA Agreement protects economic rights that are equivalent to the internal market freedoms. The case concerned a Norwegian law that extended the advertising prohibition to the visible display of tobacco products, except in dedicated tobacco stores. The Court noted that a ban may have a restrictive effect on the marketing of tobacco products. ^{Footnote 215} If it affects domestic and imported goods alike, the ban benefits from the Keck exemption. ^{Footnote 216} If that is not the case, the ban may be justifiable as a measure protecting public health, if it meets the requirement of proportionality. ^{Footnote 217} According to the Court, the measure “by its nature seems likely to limit, at least in the long run, the consumption of tobacco” and is therefore suitable to achieve the objective of protecting public health. ^{Footnote 218} Unless there is a less restrictive means available to achieve the goal, the ban cannot be considered to violate the prohibition of quantitative restrictions on the import of goods and measures of equivalent effect. ^{Footnote 219} The Court emphasised in this context that it is sufficient for the government to demonstrate that “it was reasonable to assume that the measure would be able to contribute to the protection of human health”, even in the presence of some scientific uncertainty. ^{Footnote 220}

To summarise, EU internal market law does not prohibit national advertising restrictions that serve an objective of public interest. A national fossil fuel advertising ban can therefore be in conformity with internal market law. The preceding overview shows that internal market law is very sensitive to national restrictions that undermine market access of goods and service providers from other Member States. Advertising restrictions can make it more difficult for new competitors to enter a national market and may therefore benefit domestic goods and service providers. A national advertising ban must be designed in a way to minimise this risk.