Tobacco on Trial

EUobserver has reported that a Belgian Court has referred questions to the European Court concerning a case taken there by anti-smoking campaigners fighting to get a judicial ban on the sale of cigarettes and the collection of tax on their sale. The case is being referred to the European Court because the campaigners are relying on the Lisbon Treaty, the Charter of Fundamental Rights and the UN Convention on the Rights of the Child 1989 in their case, so this case, if admitted, has the potential to have EU-wide effects. It's important to stress that this case has not yet been admitted, and if it is, it will be well over a year before there's a ruling. Still, the issue of tobacco bans and the EU reoccurs constantly.

Last year the Commission promoted a recommendation advocating an EU-wide ban on smoking in public places. I criticised this, because it was bandwagon politics: the EU does not have the power to legislate for such a ban. Worse, for the EU bandwagon politics backfires spectacularly, almost without fail: these kind of wishful, "wouldn't it be nice...?", recommendations devalue the perceived worth of the EU, and raise fears, or hopes, of European action that cannot be fulfilled, cumulatively leading to disillusionment and resentment of the EU that tars the European idea by implication.

So is the position different under the Lisbon-amended TFEU? The old Article 152 and the new (and renumbered) Article 168 both exclude the harmonisation of the laws of the Member States. Paragraph 5 of Article 168 states:

"The European Parliament and the Council... may also adopt incentive measures designed to protect and improve human health... [highlights cross border issues]... and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States." [Emphasis mine].

Case law also states that legislation cannot try to harmonise laws in an area that has been explicitly excluded from harmonisation in the Treaties by relying on a different article (say, on the free movement of goods). It's hard to see the Court circumventing this purely on the Lisbon-amended treaties to bring in such radical change.

When it comes to the Charter of Fundamental Rights and the UN Convention, I'm unsure of which specific articles to look at as I haven't read the actual case that the campaigners are putting, and how far the Charter and Convention could be considered applicable. From a quick glance over the Charter, the articles dealing with health, child rights, private life, etc., are, as you would expect, general rights that don't give much scope for the positive interventionism that a smoking ban would imply. The Convention is not an integral part of EU law, but could be drawn on as a part of the legal culture of the Member States (though it's hard to see this having a huge bearing on any ruling - at least any ruling as decisive as that the campaigners are hoping for).

Health policy should largely stay at the Member State level: it consists of a large chunk of public expenditure and would be best dealt with at the national level - particularly as dealing with health policy on any scale beyond what is necessary to deal with cross border matters and low-level integration logically implies a shift to what would be a high level of social and economic integration (to eliminate inequality of health care between all EU citizens), and there simply isn't the political will or political engagement to support such a project. Banning smoking isn't of this scale necessarily, but it would entail a significant extension of EU law.

The health and taxing policies of Member States when it comes to drugs such as tobacco and alcohol, etc., are very culturally sensitive. There are different drinking and smoking cultures in different states; Ireland was the first EU state to adopt a smoking ban in public places and in the work place, and Sweden and Denmark have high alcohol taxes. If the European Court was to look at the legality of the sale and/or tax collection of these drugs as something the EU and EU law should deal with, it could set precedent for the expansion of EU competences (which could lead to a clash with the German Bundesverfassungsgericht).

I have not been able to read the cases lodged with the Court yet, and they will be very interesting to follow should they be admitted, but on first glance I cannot see anything approaching the radical imposition of a ban being the result. This is for 3 main reasons:
1. I think that the exclusion of harmonisation, and the supporting case law, is strong enough to prevent such extreme judicial activism - it would require too many stretches of judicial imagination and intellectual squaring of circles.
2. A ban, or a ruling that implies that the Court/EU has more rights in this area than would seem to be the case on the face of the Treaties could risk a backlash from the Bundesverfassungsgericht, which has renewed its claim to the right to police the competences of the EU in its ruling on the constitutionality of the Lisbon Treaty.
3. The area is just too radical for judicial activism. Surely the argument that this is a matter for law-makers rather than the judiciary will weigh heavily on how the case, if considered, would be decided. Laws and taxes on drugs are well debated and discussed; how justifiable could it be, for instance, that the European Court could make such decisions on drugs on health grounds, when their place in society is regularly debated in each Member State? What about the liberal drugs laws in the Netherlands? Could the work of public debate and cultural considerations be overturned by the extension of principles established under a radical tobacco ruling?

Again, it will be interesting to see how the court deals with the cases, should it be admitted, and perhaps I'm judging it too much on face value and it will become clearer to me upon a full reading, but I think that the Court would be wise to resist the radical wishes of the anti-smoking campaigners.