In its judgement today, the EFTA Court ruled that the display ban, which "by its nature" would reduce the consumption of tobacco in Norway, clearly reflects health concerns recognised by Article13 EEA. "Accordingly, in the absence of convincing proof to the contrary, a measure of this kind may be considered suitable for the protection of public health," states EFTA in its ruling.
The EFTA Court did agree with Philip Morris Norway who argued that the display ban in shops entails an unlawful restriction contrary to Article 11 of the Agreement on the European Economic Area as it hinders the free movement of goods.
However, the court said it will be up to the national courts to determine that their objective to protect public health could not be achieved by less extensive prohibitions or restrictions. "The review of proportionality [between Article 11 and 13] and of the effectiveness of the measures taken relies on findings of fact which the referring court is in a better position to make than the EFTA Court".
Today's ruling ends one of the first legal challenges brought against a display ban of cigarettes. Although EFTA, which consists of Iceland, Liechtenstein, Norway and Switzerland, doesn't have juridical powers over EU policy, the outcome is expected to indirectly influence the ongoing reform of the EU tobacco products directive.
After a display ban took effect in Norway in January 2010, Philip Morris Norway filed a lawsuit against the Norwegian state (represented by the Ministry of Health and Care Services) before the Oslo District Court, which requested an Advisory Opinion from the EFTA Court in October 2010. (ci)