Photo by Tapio Haaja on Unsplash
The summary proceedings judge of the District Court of The Hague ruled 25 April 2025 that the municipal ban on fossil advertising in The Hague is lawful and can be upheld. It was tested against various Dutch and European legal grounds and passed all those tests. It can thus serve as a valuable example for other local and national legislators seeking to regulate climate-related advertising.
The following consideration by the court in the preliminary relief proceedings aptly captures the essence of the case: ‘After all, against the general health interests of citizens there is only the commercial interest of advertisers. That this balancing of interests turned out to the detriment of the advertisers should therefore come as no surprise. (…) It is not for the Municipality [of The Hague] to refrain from taking measures to promote the health of its residents in order to strengthen the future (financial) position of the travel agencies.’
The interest organisation for operators in the travel industry ANVR and the travel organization TUI claimed in summary proceedings that the advertising ban should be declared inoperative, so that they would not be restricted from advertising highly polluting air travel and cruises.
ANVR and TUI invoked various (Dutch and European) legal grounds for this, including the right to freedom of expression under the Dutch constitution and the European Convention on Human Rights (ECHR) and the principle of proportionality (that the adverse consequences of a decision for interested parties should not be disproportionate in relation to the goals served by that decision).
The court ruled that the advertising ban does not violate any of the principles invoked by ANVR and TUI.
Key takeaways and legal conclusions from the judgment are:
- Municipal authority and climate action:
The advertising ban can help protect the health of its residents and visitors and reduce the negative effects of climate change. These sufficiently affect the public interest that the Municipality is entitled to regulate on them within its municipal boundaries.
- Applicability of the Unfair Commercial Practices Directive:
The advertising ban does not aim to protect the economic interests of consumers, but to prevent the negative effects of climate change as much as possible and to protect the health of residents and visitors to The Hague. Therefore, the advertising ban does not fall within the scope of the directive.
- Freedom of expression (Article 10 ECHR & Article 11 EU Charter):
The advertising ban contributes to the legitimate goal of protecting health and mitigating the negative effects of climate change. The ban is both proportionate and subsidiary. The latter also because (the members of) ANVR and TUI remain free to advertise other types of travel that are less environmentally harmful.
- Legal certainty and the lex certa principle:
It is sufficiently clear to advertisers what is covered by fossil advertising and which advertising they are or are not allowed to make. That this may occasionally require some interpretation does not violate the lex certa-principle. This all the more so since the advertising ban is aimed at professional parties, who would obtain expert advice on this if required.
- Proportionality and public interest:
The advertising ban is appropriate and necessary to contribute to the intended goal of countering the negative effects of climate change, for the benefit of the residents and visitors of The Hague and protecting their health. That interest (of course) takes precedence over the (financial) interests of the advertisers: ‘After all, against the general health interests of citizens there is only the commercial interest of the advertisers. That this balancing of interests turned out to the disadvantage of the advertisers should therefore come as no surprise. (…) It is not up to the Municipality to refrain from taking measures to promote the health of its residents in order to strengthen the future (financial) position of the travel providers’, the court ruled.
- On the principle of equality:
The court ruled that the distinction made in the advertising ban between different forms of advertising is justified. It is not imperative that a measure such as the advertising ban leads to a comprehensive solution to the problem, but it is sufficient that it can contribute to achieving the intended objective.
Reclame Fossielvrij had joined the side of the municipality of The Hague in these summary proceedings, defending against the claims of ANVR and TUI (where in turn D-Reizen and Prijsvrij.nl had joined them). Advertising Fossil Free was represented by Benjamin van Werven and Berber Brouwer (Walden Grene) and Tjarda van der Vijver (Advocates for the Future).
The (Dutch) judgment can be read here.