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(2000) C-376/98 Germany v Parliament and Council. The EU passed legislation restricting the advertising of tobacco products, using the powers conferred by what is now Art. 95 of the ECTreaty. This legislation was challenged successfully by Germany, on the grounds that Art. 95 does not create an unlimited power to harmonize the national laws of member states. Art. 95 only empowers the EU to legislate to harmonize national law where it is necessary to do so to ensure the proper operation of the internal market. The ECJ pointed out that not every instance of disparity between national law would be sufficient to disturb the internal market, and there was no reason to think that differences in the law related to tobacco advertising would have such an effect.
It is likely that the EU could have acted to restrict tobacco advertising, but it would have had to do so under, for example, Article308, which provision still allows for a veto by individual member states.
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