Case 1993-017f

This case considered whether Article 7 §2 of the law dated January 24, 1977 (“Article 7 §2”) from the Belgian Federal Parliament (governing the protection of consumer health with respect to nutritional foodstuff) or Article 13 of the decree dated December 2, 1982 (“Article 13”) from the Council of the French Community (restricting certain advertising for tobacco products) unconstitutionally gave the State the right to regulate tobacco advertising. This case dealt with the same question about Belgian federalism and jurisdiction to regulate tobacco advertising that the Constitutional Court of Belgium (then-Court of Arbitration) considered in C. C., n°1992-006f, 5 February 1992.

The question was referred to the Court in 1991 in relation to two cases. One cased involved the European Society for Commerce, Advertising, Industry, and Electricity Corporation (“Copel Europe Corporation”) and its use of lighted billboards to advertise tobacco-based products, which was impermissible under the contested provision. The other involved charges against J. Mahieu for presumed infractions of both Article 7 §2 and Article 13 for tobacco-related advertising.

The Council of Ministers argued that the judgment of C. C., n°1992-006f, 5 February 1992 affirmed that matters of tobacco and tobacco-based products fell under the jurisdiction of the Belgian Federal Parliament to regulate for consumer protection and to regulate “nutritional foodstuffs”.

Copel Europe Corporation argued that tobacco was not a nutritional product and that laws regulating tobacco to prevent disease were within the Communities’ jurisdiction over health education. Copel Europe argued that the exception of national prophylactic measures from the Communities’ jurisdiction over health issues should be interpreted narrowly and did not include regulation of tobacco advertising.

The Court reaffirmed its reasoning in C. C., n°1992-006f, 5 February 1992 and held that Article 7 §2 did not exceed the jurisdiction of the Belgian Federal Parliament to regulate for consumer protection. The Court determined that article 5, 1^st §, 1, 2 of the special law dated August 8, 1980 (the “special law”), which gave the Community jurisdiction over  “health education as well as the activities and services of preventative medicine, except for national prophylactic measures”, did not empower the Community to regulate or prohibit commercial advertising for the promotion of tobacco. Rather, considering that the preparatory work for Article 7 §2 demonstrated the understanding that tobacco was included in “nutritional foodstuffs”,  the national legislator remained competent to regulate tobacco advertising. The special law denied the Community’s jurisdiction to regulate nutritional foodstuffs.

Moreover, the Court noted that Article 7 §2 of the law dated January 24, 1977 did not violate Constitutional guarantees of equality and non-discrimination because it singled out tobacco advertisers based on a valid public health objective.

As per the query regarding Article 13, the Court pointed out that this article had been previously annulled by the Court of Arbitration. Thus, the question referred to the Court on this point had been mooted.

“According to article 5, 1^st §, 1, 2 of the special law for institutional reforms dated August 8, 1980, the customizable issues intended in article 59bis, § 2bis, of the Constitution include in particular with respect to health policy, ‘health education as well as preventive medical activities and services, with the exception of national prophylaxis measures.’ None of the terms of this list expressly assign the Communities the authority for regulating advertising for tobacco.” (Section 2. B.1)

“What is more, from the preparatory work of the special law, it emerges that if the community authority covers in particular information and health education, the protection of the population, in particular the prevention of cancer, and the improvement of the state of health of the population, either in the framework of health education or by other appropriate means, the special legislator has in particular excluded from community authority the matter of ‘regulation related to nutritional foodstuffs.’ This term designated the subject of the law dated 24, 1977, related to the protection of consumer health with respect to nutritional foodstuffs and other products. Given that at the time when the special law was written, the regulation of advertising for tobacco and similar products was included in what was called the ‘regulation related to nutritional foodstuffs’, there is basis for considering that the national legislator remained competent for regulating advertising pertaining to tobacco products.” (Section 2.B.1)

“Due to the fact that the objective of the legislator is to protect public health, article 7§2 of the law dated January 24, 1977, does not differentiate treatment, which would be contrary to the rules of equality and non-discrimination, which would be contrary to the rules of equality and non-discrimination.” (Section 2.B.2)