A new ruling by the European Court of Justice could represent a breakthrough for companies that are facing bans on their advertising in key European markets. 
    The ruling resulted from a case brought by the publishers of Gourmet magazine against the Swedish government's ban on alcohol advertising.
    The European Court said that the Swedish ban on alcohol advertising constituted a restriction on the freedom to provide services, stating: "A measure such as the prohibition on advertising, even if it is non-discriminatory, has a particular effect on the cross-border supply of advertising space, given the international nature of the advertising market in the category of products to which the prohibition relates."
    Some advertisers are now hoping that the ruling will enable them to renew legal action to overturn other bans. 
    At the top of the European hit list is the Greek prohibition on toy advertising to children. Also up there are France's so-called Loi Evin law, which restricts the advertising of alcohol and tobacco products, and Germany's Zugabeverordnung or rebate law, which prohibits gifts and rebates.
   The European Commission has also been spurred into action by the new ruling and now intends to use the judgment to tackle advertising restrictions as a free trade issue. 
    Commission officials are drawing up a list of restrictions that need to be lifted, and this is set to include the current bans on commercial communications, such as Germany's rules against two-for-the-price-of-one promotions and its ban on advertising lifetime guarantees.
    However, lawyers are advising caution to their advertising clients, warning them that there is still some way to go before these bans are overturned.
    They are concerned that while the ruling did recognize that governments cannot restrict the free movement of services, they still can ban advertising if they think it is in the interests of public health.
    In fact, in the Gourmet case the European Court has since referred the matter back to a Swedish court for a final decision. Now a domestic court will have to decide whether the government's alcohol advertising ban is too draconian in terms of public health protection and establish whether the same effect could be achieved with less restrictive rules.
     Whatever the outcome of the Swedish court decision, the Gourmet ruling still represents an important shift in attitude on advertising restrictions in Europe. 
    Not only does it mean that national rules fall within the scope of the European-wide treaty that protects the free movement of goods by law, but it also clearly gives the commission's lawyers a tool to use in challenging national restrictions.

April 18, 2001 © 2001 Media Life

-Simon Bond covers European media for Media Life, writing from outside of  London.

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