3.1 The development of TAD1

The first Commission initiative in 1989 on tobacco advertising was a proposal to restrict advertising. Although it was clearly motivated by the ambitious goals of the EACP, the Commission’s principal argument was that the removal of all obstacles to trade by 1992 required the harmonisation of national regulations at European level, including those on tobacco advertising. It was modest in its aims and scope, prescribing only partial harmonisation, prohibiting indirect advertising and advertising in publications intended for people aged under 18 years. Advertising in press and by means of posters and bills should carry health warnings. Given the state of legislation in the majority of the member states, the Commission reasoned it was impossible to propose a ban. Only Italy and Portugal already banned tobacco advertising, whereas Belgium, Ireland and Luxembourg prohibited advertising in publications directed at young people. Spain, Denmark, the UK and the Netherlands had opted for partial restrictions based on legislation or voluntary agreements with the tobacco industry (Commission of the European Communities, 1989).

After the Commission had tabled its proposal, the EP gave its opinion during first reading. The parliamentary Committee on the Environment, Public Health and Consumer Protection (ENVI) advised the plenary to amend the proposal by asking for a ban instead of mere restrictions (23 votes to 3, with 6 abstentions). In March 1990, during the plenary meeting, most members of the Parliament (MEPs) considered a total ban an improvement for public health (170 votes to 111 with 17 abstentions).

Meanwhile, developments in France greatly influenced the debate at European level. In 1990, the French government announced its plan for a ban on tobacco advertising – the so called Évin Law was passed in January 1991 (Duina and Kurzer, Reference Duina and Kurzer2004). In addition, Belgium and Greece enacted stricter legislation. In response to the EP’s encouragement and these national developments, the Commission proposed a tobacco advertising ban in May 1991 (Commission of the European Communities, 1991).

The amended proposal prohibited all forms of direct advertising, with the exception of shops specialised in the sale of tobacco, as well as indirect advertising, that is the advertising of non-tobacco products using a tobacco brand name. The Commission stipulated that the main goal of this proposal was to reinforce the functioning of the internal market (explaining the use of article 100a (now article 95), arguing that its aim was to ensure the free movement of newspapers, magazines and other publications that were hindered by differences in national regulatory regimes on tobacco advertising. However, it was clear right from the beginning that the proposal (mainly) served a public health purpose.

In December 1991, the parliamentary ENVI Committee reasoned that the amended proposal largely met the wishes of the EP. The committee (14 votes to 4, with 5 abstentions), suggested to include a ban on sponsorship by the tobacco industry. During the plenary vote in February 1992, all amendments as proposed by the parliamentary committee, were adopted (150 votes to 123, with 12 abstentions).

In the Council, Germany, the United Kingdom (UK), the Netherlands and, to a lesser degree, Greece and Denmark renounced the ban for several reasons. In line with arguments from the industry, they argued against the proposal referring to the right to freedom of speech, because of a domino effect towards further advertising restrictions for products the Commission deemed harmful, the lack of a relationship between advertising and tobacco consumption and the effectiveness of voluntary agreements. They also claimed that advertising did not recruit new smokers. Furthermore, they questioned the legal basis of the proposal, arguing that the Commission had misused article 100a and a decision had to be made by unanimity under article 235 (now article 308) (Lesny, Reference Lesny1993). The qualified majority voting (QMV) rule enabled the opposing countries to block a decision for several years. However, in December 1997, the Council managed to reach a common position, which, as we will demonstrate in the next section, was only possible because of several last-minute moves and package deals.

The Council accepted the ban on tobacco advertising as well as on sponsorship, in line with the 1992 amendment from the EP. In addition, there were some specifications with regard to its scope. Indirect advertising was not forbidden for brands that existed before this directive and were used for both tobacco and other products. The ban did not apply to publications published and printed in third countries not principally intended for the Community market. Finally, Greek kiosks were exempted from the ban on tobacco advertising. Implementation was postponed for one year in respect to the press and two years in respect to sports sponsorship. Sponsorship organised at world level could continue until October 2006, provided that countries voluntarily reduced the visibility of advertising and decreased the sums devoted to such sponsorship.

The Commission considered the Council text an acceptable compromise. In April 1998, during the second reading of the EP, the ENVI committee delivered its opinion in favour of the common position without amendments (36 votes to 7, one abstention), which was accepted in May 1998 by the plenary.

3.2 Annulment and the development of TAD2

Once the directive had been passed, Germany asked the ECJ to annul it (Case C-376/98). Previously, the ECJ had been receptive to public health arguments in favour of smoking prevention, given that it improved the functioning of the internal market. However, the German government stated that the tobacco advertising ban was not based on appropriate constitutional grounds. It argued that the directive exceeded its legal basis as an internal market measure. Following that cinema advertising, billboards, ashtrays and other merchandising could not cross borders, it represented a barrier to trade instead of facilitating it. The German government claimed that public health was the primary goal of the directive (Boessen and Maarse, Reference Boessen and Maarse2008). Germany also enquired as to whether the fundamental right to freedom of expression, the principle of proportionality and the principle of subsidiarity had been infringed.

In its ruling, the Court agreed with the German government that the measure did not improve the functioning of the internal market and therefore annulled the directive in October 2000 (for an analysis of this case see Tridimas and Tridimas, Reference Tridimas and Tridimas2002; Boessen and Maarse, Reference Boessen and Maarse2008). Remarkably, however, the Court also formulated guidelines for a legally acceptable policy. It stated that the EU could legitimately introduce a more limited ban on tobacco advertising and sponsorship with the same legal basis. This resulted in a new Commission proposal in 2001. The Council and the EP adopted the directive in 2003, which adhered strictly to the limits laid down by the Court in its judgement.

The scope of TAD2 is limited to advertising with a cross-bordering dimension in print media, on radio and via Internet and sponsorship. Advertising in cinemas and on billboards, or using merchandising (e.g. ash trays or parasols) therefore falls outside its scope as well as sponsorship of events which are purely local, with participants coming from only one member state.

Table 1 presents an overview of the content of TAD1. It clearly highlights the impact of the final round of negotiations in the Council. Several compromises were necessary to reach a common position during that specific meeting. However, the spirit and structure of the proposal had generally been maintained. It also demonstrates that the EP did not introduce any amendments during the second reading and accepted the common position as such. The deadlock situation was circumvented after a common position was reached.Footnote 1 Therefore our analysis in the next part concentrates on the policymaking process of TAD1.

Table 1

Development of the directive 98/43/European Commission (based on Golub, Reference Golub1996).

*Vote against: Germany and Austria; abstention: Spain and Denmark.

Com1 = Commission proposal banning tobacco advertising; Com2 = revised Commission proposal.

ENVI1 = first report Parliamentary Committee; ENVI2 = second report Parliamentary Committee;

EP1 = European Parliament first reading; EP2 = European Parliament second reading.

4.1 The Commission’s right of initiative and role as a policy broker

In the European context, with its complex institutional setting, particularly the Commission has frequently applied entrepreneurial strategies to get beyond a political impasse. As the central node in numerous interactions between all kind of actors and policy areas, it is the sole actor that has an overview of all ongoing policy developments (Cram, Reference Cram1997; Héritier, Reference Héritier1998).

The set up of the EACP can be considered a soft institution to introduce in a low-profile and subtle way a new policy area that previously was predominantly left to member states (see Héritier, Reference Héritier1999). The EAC group was a relatively independent unit with a strong staffing base, reporting directly to Directorate General (DG) Social Affairs (Gilmore and McKee, Reference Gilmore and McKee2004: 225). The enthusiasm and dedication of these civil servants together with the cancer expert committee resulted in an ambitious first action plan with a legislative approach (Aspect Consortium, 2004). Given expected opposition from the tobacco industryFootnote 2, they decided to table a series of different proposals concerning tobacco control, instead of a ‘single all-embracing directive’ (Gilmore and McKee, Reference Gilmore and McKee2004: 226). To make legislation possible, the Commission had to interpret exiting rules in a way that best fit its own agenda.

The vague language of the 1987 Single European Act (SEA) made it possible ‘to piggy-back health considerations onto the development of the single market’ (Randall, Reference Randall2001: 96), recognising health as a dimension of economic integration. According to the newly introduced article 100a(3), the Commission should take a high level of health protection as a basis for its proposals concerning the establishment and functioning of the internal market. This article had already been used in EU tobacco control policies adopted between 1989 and 1992. The Commission played the treaty-base game as a creative response to the absence of any real alternatives (Héritier, Reference Héritier2000; Aspect Consortium, 2004).

Before the Treaty on European Union (TEU), the Community lacked any authority to develop policies that had public health protection as their ‘principal or sole justification’. Article 129 (now article 152) of the TEU gave the EU a narrow public health mandate, however, excluding the option of harmonisation. Therefore it could never provide a legal basis for the tobacco advertising ban. The only alternative was article 235 (now article 308), offering room to act in circumstances where action by the Community was necessary, but no legal basis existed. However, the use of this article would diminish the role of the EP to consultation and require unanimity in the Council. By linking its proposal to the single market programme, the Commission created a situation in which the Council could decide by qualified majority (Héritier, Reference Héritier1999). It reflected the Commission’s assessment that the ‘article 235 route’ was likely to fail, because of the impossibility of reaching political consensus on a ban (Lesny, Reference Lesny1993). So despite consistent ruling of the ECJ that the choice of a legal basis should always be a matter of legal principle (Hervey, Reference Hervey2001a), the strategy of the Commission reflected a high degree of political pragmatism.

Another subterfuge strategy was the creation of a supportive network. The EACP provoked an immediate reaction from the tobacco industry, which started to set up offices in Brussels. ‘It was quite clear that if you really want to deal with cancer, tobacco-related cancer is the biggest topic area that you could target. That meant inevitably you were going to attack the tobacco industry’ (5, lobbyist). Still, it took the industry quite some time to develop a fully functioning lobbying machine (Gilmore and McKee, Reference Gilmore and McKee2004).

Meanwhile, contacts with like-minded interest groups could strengthen the Commission’s position ‘in relation to national governments and opposing interest groups’ (Fairbrass and Jordan, Reference Fairbrass and Jordan2003: 109–110). One of the measures of the first EAC action plan concerned ‘information exchange in the struggle against smoking’ (Aspect Consortium, 2004: 109). However, the European health lobby still had to develop. ‘The Community actors were making proposals, the industry was lining itself up to oppose them, but there was no one who was going to give the health arguments in response to the industry’s arguments’ (5, lobbyist). Furthermore, in the early 1990s, medical and health communities at national level were rather inactive in their opposition against smoking (Bouma, Reference Bouma2001; Duina and Kurzer, Reference Duina and Kurzer2004). Therefore the EAC group tried to influence the landscape of pro-European health interest representation by providing resources to establish and sustain interest groups and asking them to undertake functions on behalf of the Commission (Greenwood, 2003).

The European Bureau for Action on Smoking Prevention (BASP) was provided with financial support and assisted advocates of the ban with quarterly newsletter and thematic reports on tobacco control policy. Within a few years, it evolved as the number one target of the tobacco industry (Neuman et al., Reference Neuman, Bitton and Glantz2002).

The EAC group also subsidised national cancer leagues and tobacco control organisations, involving them in spreading the message of the EACP (2, PH lobbyist). Funded through the EACP, cancer and tobacco control organisations held meetings every six months. As a result ‘the individuals concerned got to know one another quite well, sharing good and bad practice, learning from one another. So gradually what was building was a sense of identity within the health community across the member states’ (5, PH lobbyist).

In 1994, the Commission evaluated these semi-annual meetings. This resulted in the creation of two pan-European networks: the European Network for Smoking Prevention and the European Network on Young People and Tobacco. Another consequence of the evaluation was to cease the funding of BASP (Bitton et al., Reference Bitton, Neuman and Glantz2002). Different explanations exist for these changes. First, Germany, the UK and the Netherlands as well as DG AgricultureFootnote 3 pressured the EAC group within the Commission to stop financing the leading anti-tobacco lobby in Europe. Another reason mentioned was that the head of the public health unit of DG Social Affairs wanted to weaken the EACP, which had gained too much attention and was considered too independent.Footnote 4 One way was to weaken the role of BASP (2, PH lobbyist; Doyle, Reference Doyle1995; Gilmore and McKee, Reference Gilmore and McKee2004).

However, whilst the EACP ‘set the scene, it was the partnership with voluntary organisations that offered the delivery mechanism at grass-root level’ (Aspect Consortium, 2004: 109). Through letters, resolutions, position papers, press releases and conferences, they managed to influence the debate at national level (Khanna, Reference Khanna2001), resulting in an evolution towards more restrictions (4, Dutch civil servant). In a tobacco industry document it was mentioned that ‘the degree to which the ‘antis’ have penetrated the fabric of the European Community and the major international non-governmental organisations is quite remarkable. (…) The relationships between individuals and organisations are almost incestuous, but serve to consolidate a common view and strategy for smoking control throughout the region’ (Philip Morris, Reference Philip1993b).

4.2 The Council of Ministers: the role of the presidency and the QMV rule

Within the Council, the problem of collective action together with negotiations being linked and continuous forms a very complex environment in which to circumvent a deadlock. Under such circumstances, the presidency can play an important role. As the chair, it has considerable control over the number of meetings and the agenda (Nugent, Reference Nugent2003) and can actively try and find escape routes. As our case shows, however, in highly controversial policy areas the presidency can use its central position to the opposite result as well: obstruction of the process.

One important argument for opposing member states was controversy over the legal basis. In 1993, the Council’s Legal Service in its opinion claimed that the ban could not ‘be regarded as having the effect of harmonising national provisions relating to the establishment and functioning of the internal market. The provision covers purely domestic situations and is designed to protect public health’ (Council of the European Union, 1993). This was obviously good news for the opponents of the ban, who used it to renounce the ban and obstruct the policymaking process.

For example, the Belgian Minister of Health exploited the conclusions of the Council’s Legal Service to distort the Health Council meeting – undermining her role as president to facilitate the negotiating process during the second half of 1993. In fact, the Belgian government was in favour of the proposal, but the Belgian Health Minister personally did not show any commitment (2, PH lobbyist). The discussion in the health working group was based on an informal paper, which proposed a ban, but delayed its implementation until 1998. The Belgian Minister had not approved the paper and had no intention of pursuing the dossier. However, the Commission decided to reinstate the item on the Council’s agenda (Philip Morris, Reference Philip1993a). During the following Council meeting, the Belgian Minister cited the opinion of the Legal Service and returned the proposal to the working group without even a ‘tour de table’ (Girod and Greenberg, Reference Girod and Greenberg1993).

When negotiations are not progressing, the president might put forward a ‘compromise from the chair’ (Hayes-Renshaw, Reference Hayes-Renshaw2002; Matilla, Reference Matilla2004). In such a context, presidencies are expected to act as honest mediators, subject to the impartiality norm (Metcalfe, Reference Metcalfe1998: 414). However, the compromise proposal suggested by Germany during its presidency in 1994 was in fact drafted by the tobacco industry, as appeared afterwards. The tobacco industry tried to make optimal use of the German presidency, which indeed dared to come up with a so-called compromise based upon minimal harmonisation as an alternative to the existing Commission proposal for a ban (see Neuman et al., Reference Neuman, Bitton and Glantz2002).

When it comes to negotiations in the Council, package deals, issue linking and other ways to get all the member states on board are often necessary. However, in this case the whole policy game was played out at different tiers. ‘You had ‘the small administrators’ level trying to get a government view with the different administrations’ (1, German civil servant). Civil servants from national Ministries of Health discussed the tobacco advertising ban in the health working group of the Council. Negotiations in this group were ‘(…) incremental, mainly based on common interest. The informal atmosphere, agreeing behind the scenes normally plays quite a big role. In this case it did not have a chance. (…) The second layer was the layer of highest political people saying what they wanted’ (1, German civil servant).

In fact, it was the tobacco industry that had concentrated on forging alliances with national policymakers (Bitton et al., Reference Bitton, Neuman and Glantz2002). In particular, it sought contact with political actors outside national Health Ministries, since they supported a tobacco advertising ban (Hayes, Reference Hayes1993). Several governments opposed the ban despite the directives of their own Health Ministries (1, German civil servant). The German Chancellor Kohl and former Prime Ministers Thatcher and Major as well as the Health and later Finance Minister Clarke from the UK supported the tobacco industry’s opposition (see for example Philip Morris, Reference Philip1992).Footnote 5 In the Netherlands, the industry tried to preserve Dutch opposition through its contacts within the Ministry of Economic Affairs (Philip Morris, Reference Philip1993b). Officials from Finance and Economics ministries were caught repeatedly trying to silence reports which could have influenced public opinion (Bouma, Reference Bouma2001). Furthermore, there were contacts with high ranking officials in the Greek government (Bitton et al., Reference Bitton, Neuman and Glantz2002; Aspect Consortium, 2004). This was quite remarkable. A respondent explained: ‘It is very seldom that a Prime Minister mixes into a case like this. (…) However, Prime Ministers of several member states said ‘no’ to the tobacco advertising ban’ (1, German civil servant). According to one public health lobbyist, interest representation at Council level was difficult: ‘That is, I think where we did not do as well as the tobacco industry did. I mean, the industry quite clearly had in its fingers several key governments, Germany and the UK in particular’ (5, lobbyist).

It was not until an important change took place in 1997, that a concrete step towards overcoming the deadlock could be made. Whereas five member states had formed a blocking minority for a long time, elections in the UK in May 1997 resulted in a Labour government which, contrary to the position of its predecessor, supported the ban on tobacco advertising. In 1993, the Dutch government had decided to reconsider its position in the event that its vote became decisive, which after the policy change by the UK was indeed the case (Agence Europe, 1997a).

The day before the final Health Council meeting in December 1997, the British and Dutch government officially changed their position. Furthermore, Greece declared it would abstain from voting. During the Council meeting, the Spanish delegation suddenly also announced its intention to abstain. This turnaround would have left those ‘in favour’ a few votes short of the 62 needed for a qualified majority (Agence Europe, 1997b). The new Spanish position was remarkable, since, in the past Spain had always been in favour. It clearly suggested a political trade-off. There were rumours that Germany had tried to prevent a decision by linking tobacco advertising to Structural Funds. By threatening Spain with discontinuation of these funds, Germany hoped that Spain would join the opposition (interviews 1, 2, 5, 7 and 9).Footnote 6

The Luxembourg presidency played a major role in circumventing a deadlock caused by this last-minute turnaround of Spain. The change in the British and Dutch attitudes encouraged the Luxembourg presidency to propose a new compromise. It maintained the initial proposal in many ways, but allowed a two-year transition period for the phasing out of indirect advertising and sponsorship. A further extension could be granted in areas of worldwide sponsorship. In addition, advertising at the point of sale and in tobacco trade publications was permitted (Agence Europe, 1997c).

When a Council meeting is fully deadlocked, it may help to reduce the size of the delegation, since ‘it is best not to have too many people around when a Minister has to make concessions’ (9, Dutch civil servant). In this case, the Luxembourg president first sent out all the lower level civil servants. At a later stage, only ministers and ambassadors were allowed to remain. Several respondents claimed that the role of the Luxembourg presidency was pivotal: ‘A small country can attain more than a large country in such a difficult situation (…). In small countries, it is less about prestige’ (9, Dutch civil servant). Luxembourg is known for its successful presidencies (Metcalfe, Reference Metcalfe1998: 421). ‘There is a culture of negotiating, because of the small size of the country, which means it is used to dealing with its neighbours’ (5, PH lobbyist).

The deal was struck around the Greek tobacco kiosks. In Greece, kiosks are surrounded by tobacco advertisements. The Greek government agreed with the tobacco advertising ban, providing there was derogation for its kiosks. The Council reached a common position, with Germany and Austria voting against and Denmark and Spain abstaining. The Luxembourg president was ‘very satisfied’, as was Commissioner Flynn, for whom it was ‘tonight or never’ (Agence Europe, 1997c).

4.3 The EP: co-decision and conciliation

With the introduction of the co-decision procedure in the TEU in 1993, the power and status of the EP increased significantly. In theory, the EP can play an important role, with the possibility to amend or reject the Council’s common position. However, in this case the EP accepted the common position with its derogations for the Greek kiosks and prolonged timetables for implementation. Had the EP amended the common position, this would have resulted in a longer-lasting deadlock situation, which would then needed to be solved via conciliation. Aware that the narrow qualified majority (62 out of 87 votes) in the Council made agreement under the informal conciliation procedure not very likely, the public health lobby tried to convince the EP to accept the common position, whereas the tobacco industry tried to convince the EP to amend it.

For instance, the Cancer Association of European Leagues (ECL) published five newsletters from March 1998 to May 1998: ‘Any attempt to amend the directive will inevitably invoke the conciliation procedure. The German government has made quite clear that it will take the opportunity of conciliation to wreck the directive’ (ECL, 1998a). The tobacco industry tried to convince MEPs to propose improvements to the common position. This led to ‘the situation where people pretending they were in favour of health, ran around in Parliament saying vote for amendments, and the health lobby ran around saying do not vote for the amendments. (…) The industry managed to lobby MEPs who normally were totally against a ban on tobacco advertising, who then started suggesting amendments proposing improvements to the directive’ (5, PH lobbyist).

The French rapporteur of the ENVI Committee (Cabrol, Union for Europe (UPE), France) also felt the common position had to be improved. He could not be convinced by ‘Brussels-based’ public health interest groups. Therefore these interest groups urged French public health organisations to convince him not to propose amendments. The pressure from French cancer leagues as well as high-level policymakers eventually resulted in the recommendation to accept the common position as it was (5, PH lobbyist).

Another element of discussion in the EP concerned the legal basis of the ban. Many documents on the legal basis circulated in the EP. The International Union Against Cancer and the ECL crafted a memorandum on the legality of the ban. In its newsletters, the ECL claimed that the ban had a valid legal basis (ECL, 1998b). In April 1998, the tobacco industry published a report called ‘A step too far: a call to the EP to protect the integrity of the EC Treaty’. The main goal of this report was to convince the EP to reject the common position since a tobacco advertising ban had no legal basis (Khanna, Reference Khanna2001). Furthermore, copies of the Council’s Legal Service opinion of December 1993 against the legal basis circulated in the EP to create confusion (ECL, 1998b).

Nonetheless, in May 1998 the EP voted in favour of the common position. Even though the ENVI committee was not satisfied with the common position, it did not suggest amendments for improvement. The EP was afraid that an agreement was not possible under conciliation and accepted the compromise decision of the Council over the possibility of not reaching any decision at all.