EU: Infringements Cases Pending

It has been suggested that the complaint lodged by European toy manufacturers against the TV ad ban on toys in Greece will be endorsed by the Commission this week following its unexpected postponement last week, although many observers remain puzzled by the European Commission’s failure to facilitate all four of the key infringements at issue. These have been repeatedly delayed, and in the most recent infringements meeting, the legal process seemed in one or two cases even to reverse into deliberate inaction. Some have questioned the unexpectedly strong role of the Commission President and his staff in the consideration of the infringements relating to the Greek toy ad ban, the French alcohol ad ban and the German law on premiums (Zugabeverordnung).

In summary, the cases are as follows:

• Air Miles and American Express wanted to offer their premiums schemes in Germany, but were unable to do so because of the German law (Zugabeverordnung) which prohibits such schemes. The Commission’s Legal Service suggested that air miles were not services but goods and claimed therefore that the principles established in the Keck/Mithouard case law applied. However, Lufthansa offers a similar scheme, and the Commission wrote to the German government in October 1997 stating that there was a possibility that the law was discriminatory.
• Sound Plus, a Dutch subsidiary of Polygram, is also prevented by the Zugabeverordnung and by another German law on discounts (Rabattegesetz) from making introductory offers for CDs by direct mail. The Commission wrote to the German government in 1995, and a reasoned opinion was to have been sent last week. This decision was also postponed to January.
• The French Loi Evin imposes a total ban on TV advertising and sponsorship of alcohol; this operates in such a way as to restrict the free movement of services (broadcasting) across borders. The Infringements Committee has repeatedly ducked the issue, but will return to it in a special meeting in January 1998.

The complaint against the Greek law banning TV advertising of toys, to be re-considered this week.