On 12 September 2024, the Municipality of The Hague (the “Municipality”) adopted a ban on advertisements for fossil fuels and related products, including airline travel, cruise holidays, gas contracts and fossil or hybrid-fueled vehicles (the “Advertising Ban”). The Advertising Ban, introduced under Article 2:97(7) of the local ordinance (the “APV”), applies to all public spaces within the Municipality and was challenged by the Dutch Association of Travel Agents and Tour Operators (“ANVR”) and travel agency TUI (jointly: the “Plaintiffs”) before the District Court of The Hague.
The aim of the Advertising Ban is to protect the health of the citizens in the Municipality, limit the negative consequences of climate change and to protect the environment. Plaintiffs however argued that this measure is too far reaching, in violation of several national and international legal provisions and limits their freedom of speech to promote travel related services.
On 25 April 2025, the Court upheld the Advertising Ban in Preliminary Injunction Proceedings. We will discuss this interesting decision in more detail below.
Arguments raised and reasoning of the Court
On 2 April 2025, Plaintiffs initiated Preliminary Injunction proceedings and argued the Advertising Ban was rendered without sufficient legal substantiation and justification and should therefore be suspended.
Plaintiffs firstly argued that the Advertising Ban violates the freedom of expression of thoughts and feelings under Articles 7(1) and 7(3) of the Dutch Constitution – in these provisions, it is noted that no one shall require prior permission to publish thoughts or opinions through the press, without the prejudice to the responsibility of every person under the law. This argument did however not succeed since article 7(4) of the Dutch Constitution explicitly excludes "commercial advertising" from the scope of protection of the foregoing paragraphs, which, according to the Court, includes all types of commercial communication, including travel related advertisements.
Secondly, the Plaintiffs put forward that the Advertising Ban offers consumers a higher level of protection than the level of protection provided for by the Unfair Commercial Practices Directive (“UCPD”), which would therefore violate the maximum level of harmonization allowed under the UCPD. Although the UCPD indeed provides for a maximum level of protection, the Court held that this only applies to the economic interests of consumers, and not to the interests at stake in this case, i.e. public health and environmental protection. This means, according to the Court, that the Municipality is allowed to regulate commercial advertising for such purposes.
Thirdly, Plaintiffs argued the Advertising Ban violates Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) which includes that quantitative restrictions on imports and all measures having an equivalent effect, shall be prohibited between the Member States. Plaintiffs stated the Advertising Ban is selective in nature, as it does not apply to all market participants, and that Dutch market participants are favored over foreign market participants because it makes it more difficult for them to promote their services and enter the Dutch market.
The Court however found the Advertising Ban does not discriminate between foreign and national market participants, since it uniformly applies to all parties advertising in The Hague and also holds that, even if the Advertising Ban would be considered a restriction in the sense of Article 34 TFEU, such restriction is justifiable under Article 36 TFEU: this provision allows for a restriction in accordance with article 34 TFEU for various public aims, including the aim to protect public health and the environment.
Fourthly, Plaintiffs invoked Article 10 of the European Convention on Human Rights (“ECHR”) and Article 11 of the EU Charter of Fundamental Rights (“EU Charter”) by arguing the Advertising Ban results in an unlawful limitation of their right to freedom of expression. These provisions include that the exercise of freedom of expression may be subject to restrictions, but only in case (i) there is a pressing social need to restrict the freedom of expression, (ii) the restriction is proportionate, and (iii) the reasons for restricting are relevant and sufficient.
Plaintiffs noted that the limitation of their right was unlawful, since the Municipality did not (sufficiently) substantiate the objective it wishes to achieve with the Advertising Ban – i.e. the protection of the health of the citizens in the Municipality, limiting the negative consequences of climate change and protecting the environment - can effectively be achieved with this Advertising Ban, making it too far-reaching for the noted purposes.
The Court however disagrees: municipalities enjoy a wide discretion in policymaking for the public good, which means judicial intervention is only allowed in case policies are clearly unlawful or unreasonable. Moreover, parts of a statutory regulation (such as the APV) may only be suspended in Preliminary Injunction proceedings if they are clearly incompatible with higher law or basic principles of good governance, justifying provisionally measures.
Applying these principles to this case, the Court considers that the Municipality did sufficiently demonstrate the Advertising Ban serves a legitimate aim, is proportionate, and that it contributes to this aim. Moreover, the Court takes into account the Advertising Ban only targets fossil-related advertising which means Plaintiffs and other parties remain free to advertise different types of travel and related services in public spaces which means the Advertising Ban also meets the requirements of proportionality and subsidiarity and does not violate the freedom of expression.
Lastly, Plaintiffs invoked several general principles of proper administration, arguing the Advertising Ban is insufficiently clear, disproportionate, and negligent. The Court however disagrees and considers the following:
- Lex Certa: it is sufficiently clear what type of advertising is prohibited. The fact that some explanation may occasionally be necessary does not mean that the Advertising Ban is contrary to the principal of legal certainty (lex certa).
- Proportionality: the Municipality properly balanced public health interests against commercial interests, and it should come as no surprise this balancing of interests worked to the disadvantage of the advertisers.
- Equality: although the Advertising Ban does not apply to some other polluting industries, it is not necessary for the Municipality to offer a comprehensive environmental solution. Travel organizations are still able to advertise ‘green’ products and services, which means the Advertising Ban ensures equal treatment in similar situations.
- Due Care and Motivation: the Municipality is not required to commission its own scientific research and could rely on existing research. Based on this research, the Advertising Ban was established in a careful manner.
Conclusion
In short, the Court holds the Advertising Ban does not violate any higher legislation, which means it sees no reason to suspend it or to prohibit the Municipality from enforcing. All claims of the Plaintiffs were rejected, and the Advertising Ban is still in force.
This decision shows that Dutch municipalities may, within their competence, impose far-reaching advertising restrictions to protect legitimate aims, such as in this case public health and the environment. It remains to be seen if the The Hague Municipality or other Dutch cities will impose new or other advertising bans for such public purposes – for example related to other services or products that could negatively impact public health or the environment – or if this is a first and last. We are curious to see what the future holds and what consequences this decision may have for future advertising in the Netherlands.
