While the objective of protecting public health is shared, CEEV identifies five main areas of concern:
I. Contrary to the free movement of goods and services (articles 34 and 56 TFEU)
The draft Royal Decree restricts the free movement of goods and services within the EU, as it applies to all alcohol advertising distributed in Belgium, including by companies established in other Member States. By requiring a mandatory health warning with detailed technical and language requirements across all media, the measure forces companies to redesign or adapt cross-border advertising campaigns, increasing costs and creating barriers to market access, which affect foreign operators more heavily than domestic ones.
According to the case law of the Court of Justice, such rules may constitute measures having equivalent effect to quantitative restrictions under Article 34 TFEU and restrictions on the freedom to provide services under Article 56 TFEU. The obligations are also disproportionate, as the wording of the warning is overly broad, the strict formatting rules go beyond what is necessary, and the language requirements may require multiple versions of the same campaign, particularly in digital contexts where geographic “targeting” is not always possible.
In addition, several provisions lack clarity, including the broad definition of advertising and the concept of content aimed at minors, creating legal uncertainty and a risk of over-enforcement. Overall, the measure is neither appropriate nor strictly necessary to achieve its public health objective and therefore does not comply with EU law.
II. Contrary to the e-commerce directive
The draft Royal Decree infringes the country-of-origin principle established by the E-Commerce Directive. The E-Commerce Directive sets rules for online services in the EU and says that only the country where a company is established can regulate its online activities (the “country-of-origin” principle, article 3). A rule requiring health warnings in online alcohol advertising likely violates this because it restricts cross-border online services and applies broadly to all companies, not just a specific one. While restrictions are allowed for public interest reasons like health, they must be necessary, proportionate, and targeted at a particular service or provider. Here, the measure is too general and unclear, creating legal uncertainty and therefore not meeting the Directive’s conditions for a valid restriction.
III. Contrary the audiovisual media services directive
The Audiovisual Media Services Directive applies to audiovisual and video platform providers, and it also follows the country-of-origin principle, meaning providers only have to comply with the rules of the Member State where they are established (Article 3(1)). The draft Royal Decree’s requirement to include health warnings in all alcohol advertising goes beyond what the Directive requires under Article 9(1)(e), which only focuses on protecting minors and preventing encouragement of excessive consumption. While Member States may adopt stricter rules, these must still comply with EU law and cannot restrict cross-border services. Here, the measure limits the ability of providers from other Member States to offer their services in Belgium.
It also breaches Article 3(1), which requires freedom of reception and prohibits restricting retransmissions of services from other Member States in areas covered by the Directive. Because the rule is broad and applies to all advertising rather than targeting harmful consumption specifically, it is likely disproportionate and therefore not justified.
IV. Lack of proportionality, justification and legal certainty
The draft Royal Decree raises serious proportionality concerns, as the statement “alcohol is harmful to your health” is overly broad and not sufficiently evidence-based in relation to moderate consumption, while the strict technical requirements on size, placement and duration across all media go beyond what is necessary to ensure visibility. In addition, the scope of application is unclear and overly broad, particularly regarding the definition of “advertising”, the notion of content “aimed primarily at minors”, and its application to digital and user-generated content, creating risks of over-enforcement, legal uncertainty and disproportionate compliance burdens.
The draft Royal Decree has not been justified under Article 36 of the TFEU. Article 36 provides that Article 34 shall not preclude measures justified on grounds of, among others, protection of human health. The burden of proof to justify the appropriateness of one of the narrowly construed derogations and mandatory requirements lies with Belgium. Belgium cannot rely on a justification in the abstract but must specifically demonstrate its application by reference to the circumstances of the case. It is also unclear whether the Belgium Government has considered other, less disruptive measures to provide consumers with relevant health information.
V. Risk of inconsistency with EU policy developments
The draft Royal Decree risks conflicting with ongoing EU-level work under Europe’s Beating Cancer Plan.
- The European Commission is currently assessing possible harmonised measures on alcohol-related health information and advertising
- Under the principle of sincere cooperation (Article 4(3) TEU), Member States should avoid adopting measures that could conflict with future EU legislation
Premature national action risks fragmentation and duplication, undermining future harmonisation efforts.
IN CONCLUSION
Because of the major concerns identified above, CEEV considers that the Belgian draft regulation should not be adopted in its current form because contrary to the EU law.
In light of the above, CEEV:
- calls on the European Commission and EU Member States to issue a detailed opinion under the TRIS procedure;
- requests the Belgian authorities to reassess the proportionality and EU law compatibility of the draft Royal Decree and notably postpone its adoption pending EU-level developments.
