Commercial Speech in the Law of the European Union: Lessons for the United States?

• Author: Rich, J. Steven
• Position: Tobacco advertising

1. INTRODUCTION

   On July 6, 1998, the Council of Ministers of the European Union adopted a proposal calling for a ban on all tobacco advertising in the European Union.(1) The far-reaching measure will phase out not only press and billboard advertisements, but will also prohibit tobacco company sponsorship of sporting events.(2) The likelihood of challenges to this measure by European advertising interests(3) raises the question of whether the measure is consistent with EU law governing freedom of expression. This raises the further issue of whether the EU's existing ban on broadcast tobacco advertising(4) could survive a legal challenge. Finally, the analysis of cigarette advertising in the European Union provides an opportunity to reconsider the validity of the current ban on broadcast tobacco advertising in the United States.

   In order to assess the validity of restrictions on tobacco advertising in the European Union and the United States, this Note first provides a general framework of EU law. It next examines the extent to which European and American courts have protected the freedom of expression in two other areas--professional publicity and advertisement of abortion services. These are both areas that have traditionally been considered commercial speech, and on which the courts of the European Union and the United States have reached somewhat similar conclusions. This Note next analyzes new and existing restrictions on cigarette advertising in the European Union, together with their American counterparts. This Note then argues that the existing EU ban on broadcast tobacco advertising may violate the European Convention on Human Rights and that the new total ban will clearly do so. Finally, this Note concludes that while the current U.S. ban on broadcast tobacco advertising would likely be upheld under the Supreme Court's treatment of commercial speech, both the U.S. and EU broadcast bans are more restrictive than necessary and should be narrowed to allow truthful cigarette advertising targeted at adults.

1. THE LEGAL FRAMEWORK OF THE EUROPEAN UNION

   The European Union today, consisting of fifteen nations,(5) traces its roots to the European Communities created by the Treaty of Rome. This treaty, signed in 1957, was later modified by the Treaties of Luxembourg (1970), Maastricht (1992), Amsterdam (1997), and the Single European Act (1986).(6) While the treaties, as agreements between sovereign States, may be thought of as containing an implied right of repudiation, the treaties contain no provisions for withdrawal and are therefore considered by some to be quasi-constitutional in nature. Furthermore, the Member States are not free to interpret EU law in any way they see fit. Rather, they are bound by the interpretations of the European Court of Justice (ECJ), and where applicable, the European Court of Human Rights (ECHR).

   A. The Treaties

   Since the European Union is a supranational organization, treaties are the primary source of its law. The Treaty on European Union (Maastricht Treaty), signed in 1992, created the European Union on the foundation of the European Communities.(7) The Maastricht Treaty incorporates by reference the European Convention on Human Rights (Convention).(8) Article 10 of the Convention provides that:

   1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The exercise of these freedoms ... may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.(9) The Convention, as incorporated by the Maastricht Treaty, provides the substantive source for the freedom of expression analyzed here. If the freedom were based on Article 10(1) alone, it would appear to be absolute. However, this right may lawfully be subjected to the limitations allowed in Article 10(2). The extent to which the Member States may limit freedom of expression under Article 10(2) has provided material for much litigation. The validity of such restrictions on commercial speech is the key issue addressed by this Note.(10)

   B. The Courts

   The court that enjoys the greatest stature in the framework of the European Union is the European Court of Justice. The ECJ, which has been called "one of the strongest of the EU's political institutions,"(11) has broad powers of judicial review of acts by EU institutions and Member States.(12) Two important doctrines help explain the importance of ECJ decisions to Member States--direct effect and supremacy. Under the doctrine of direct effect, the treaties of the European Union are read to create rights that individuals may claim in national courts without any further incorporation of the treaty into national law.(13) The doctrine of supremacy posits that Member States are prohibited from enforcing any law that conflicts with an EU law, whether the national law was enacted before or after the EU law in question.(14) Therefore, individuals have the right to use EU law to challenge national laws in the Member States' own courts, and national courts may, depending on their internal laws governing the reception of EU law, refuse to enforce the national laws if a conflict is found with an EU law.(15) Furthermore, even if the national court does not find a violation, the courts of the Member State may no longer apply the offending law if the ECJ declares that the law of a Member State is in conflict with EU law.(16)

   The other court that is relevant for the purposes of this analysis is the European Court of Human Rights. While the ECHR is not part of the structure of the European Union and therefore may not review acts by EU institutions, it has jurisdiction over "all cases concerning the interpretation and application" of the Convention so that its interpretation of the Convention may be regarded as persuasive authority.(17) Since all Member States have bound themselves to the Convention(18) and submitted to the Convention's separate legal order, they are bound by decisions of the ECHR. While it is conceivable that the ECJ could refuse to apply the terms of the Convention to EU institutions even if the ECHR found a violation of the Convention by an EU Member State in its implementation of an offending EU directive, this possibility seems remote.(19) It should be pointed out that the European courts, which in principle follow the continental practice of only deciding the case presented, attach a great deal of weight to precedent.(20) Strictly speaking, there is no rule of stare decisis--the courts are free to disregard prior decisions.(21) However, in practice the courts do follow their prior decisions, so studying European case law can provide insight into the law as it stands today.(22)

2. CASE LAW ON COMMERCIAL SPEECH IN THE EUROPEAN UNION AND THE UNITED STATES

   The ECJ and the U.S. Supreme Court have faced many similar issues concerning restrictions on commercial speech and have ultimately developed rules for such restrictions that are somewhat similar. First, both Courts have considered restrictions on publicity by lawyers and other professionals. Second, they have analyzed restraints on advertisement for abortion services. In both areas, the Courts have applied balancing tests that generally recognize a right to free expression, with some limitations in the commercial context.

   A. Professional Advertising

   As in the United States, professionals in the European Union face a conflict between traditional standards of professionalism, abhorring advertisement in any form, and modern economic realities, sometimes making survival.(23) Even though most of advertisement a question of professional the EU Member States allow lawyers to advertise in some form, the restrictions vary considerably from one state to another.(24) These restrictions raise two questions concerning the scope of Article 10 of the Convention. First, does the freedom of expression granted in Article 10(1) include commercial speech? Second, to what extent may a state abridge this freedom without exceeding the limitations allowed by Article 10(2)?

   Unlike the U.S. Supreme Court, which was at one time reluctant to apply First Amendment protection to commercial speech, the European courts have held without qualification that Article 10 of the Convention applies to commercial speech.(25) This makes sense for two reasons. First, the language of Article 10(1) in no way excludes commercial speech, while at the same time Article 10(2) provides states with the authority to regulate advertising when necessary. Second, European integration was, from the beginning, predominantly an effort to integrate economic sectors,(26) so protection of commercial speech fits the purposes of the treaties.

   Much more complicated than the applicability of Article 10(1) to commercial speech is the issue of a State's authority to restrict commercial speech under Article 10(2). This entails a four-part analysis. First, is the action carried out by a public authority?(27) Second, is the restriction "prescribed by law"?(28) Third, is the aim of the measure...