Shaky legal basis undermines Commission’s health campaign

Date: 30/04/1998

By Myles Neligan

THE European Commission's attempts to introduce binding EU health legislation have run into difficulties in the past for the simple reason that its powers have not expanded in proportion to its burgeoning regulatory ambitions.

The Commission's competence in this area is defined, rather loosely, in Article 129 of the Maastricht Treaty, which will in due course be superseded by Article 152 of the Amsterdam Treaty. This simply states that “a high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities”.

Under this limited mandate, EU public health policy has in the past emphasised cooperation and the exchange of information between governments, who jealously guard their exclusive competence in health delivery. In concrete terms, Union policy boils down to a series of public information campaigns and non-binding recommendations on certain aspects of medical practice.

All those with an interest in public health, from the tobacco lobby to officials in the Commission's Directorate-General for health (DGV), agree that the institution's powers in this field are seriously limited.

Robert Toet, chairman of the Confederation of European Community Cigarette Manu-facturers, and a distinguished EU lawyer, states bluntly that “the EU has no legislative competence for health measures”. His arch-enemy, Health Commissioner Pádraig Flynn, conceded in January that “the Amsterdam Treaty will not provide the Community with an adequate legal basis to address future public health concerns”.

Yet this has not prevented the Commission from trying to make the most of the few legal instruments at its disposal, a tactic which has generated a good deal of controversy.

The institution's long-running attempt to ban tobacco advertising serves to illustrate the pitfalls of this approach. In the absence of a strong legal basis in the EU treaties for binding health legislation, the proposal has been presented as a measure to harmonise advertising markets rather than as a health initiative.

“The laws of countries such as Italy which already have a ban in place are being undermined by cigarette advertising on cross-border media. This is an anomaly that has to be stopped,” said a Commission spokeswoman.

The tobacco lobby retorts, not without justification, that the primary aim of the measure is to reduce smoking, and that dressing it up as an attempt to harmonise the advertising market is bogus.

Observers agree that if the ban is approved, it will be because the political will to reduce cigarette consumption is strong enough to override perfectly valid legal objections to the Commission's proposal.

France's Loi Evin, which prohibits television companies from broadcasting sports events sponsored by alcoholic drink manufacturers, provides a second example of this legal inconsistency.

Opponents of the law say that it blatantly flouts EU single market rules, as it effectively prevents the advertising of French products at sports events taking place outside France.

They argue that the Commission, which has taken an uncharacteristically long time to prosecute the French authorities over the measure, is reluctant to come out strongly against a law aimed at protecting public health.

Legal confusion of this kind is bound to continue until the Commission either stops trying to push through far-reaching health measures, or acquires a more solid legal basis for its initiatives.