BRUSSELS, Belgium (Reuters) - A top adviser to the European Court of Justice told the court on Thursday to strike down the bloc's legislation banning tobacco advertising, saying the decision was taken on the wrong legal basis.

The ruling by European Court of Justice Advocate General Nial Fennelly is not binding on the court, the highest in the EU, but is generally a good pointer to the court's final decision. The court is due to rule some time this autumn. The European Union adopted laws in July 1998 to gradually phase out almost all tobacco advertising and sponsorship by 2006, arguing the measure was needed to improve the workings of the EU's single market, and introducing the measure as a piece of single market legislation. ``As the advertising ban cannot be said to advance the interests of the internal market, Advocate General Fennelly concludes that the (EU) was not competent to enact it on the basis of the Treaty provisions cited. He proposes therefore that the Court annul the Directive,'' the court said in a statement. With EU powers over health policy very limited at the time the measure was introduced, the European Commission justified it as a way of harmonizing different national laws which hindered free trade across the EU's borders. Germany challenged the measure in the Luxembourg-based court and a number of tobacco manufacturers -- including Imperial Tobacco Group, Gallagher Group and British American Tobacco -- brought proceedings in Britain for judicial review, a case later referred to the European Court. The complainants argued the directive was, in reality, a measure to protect public health whose effect on the internal market was incidental, and was certainly not a valid internal market measure. The Advocate General ``considers that the sole effect of the directive is to prohibit trade in goods and services to which it relates ... under (EU) law, a measure whose sole effect is to prohibit an economic activity cannot remove barriers to trade which affect that activity,'' the court said. The Advocate General's opinion comes a day after the European Parliament backed plans for larger health warnings on cigarette packets, a ban on descriptions such as ``mild,'' ''lights'' and ``low tar'' and cuts in the tar and nicotine content of cigarettes.

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