Wednesday 1 July 2009

The Commission and the Smoking Ban: Should Commission announcements be given a health warning?

You may have heard that "Brussels" would like an EU-wide smoking ban:

"The commission is suggesting the bloc's 27 member states agree smoking in "enclosed public places, workplaces and public transport" be banned by 2012, while children's exposure to tobacco should be specifically tackled and "efforts to give up tobacco use and pictorial warnings on tobacco packages" should be encouraged."

Predictably, it's got a strong reaction from some:

"The UK Independence Party says it will further harm UK pubs and accused Brussels of crossing the line.

"Nobody pretends that smoking is a good thing, but it is legal," said UKIP MEP Godfrey Bloom.

"These bullies seem to have no truck with freedom, liberty or tolerance. Well in that case we shall have to take it back. And if that means a certain level of civil disobedience, well so be it," Mr Bloom added."

I've also seen the words "Big Brother" being bandied about. Of course, this all assumes that the EU (or the Commission) has the power to bring in such a ban. It doesn't.

First of all, all the Commission is proposing is a Recommendation, which would call on member states to make the changes themselves. The recommendation would have to be passed by the Council, and wouldn't be legally binding - article 249 EC* states that "Recommendations and opinions shall have no binding force." Basically, all it would do is say "The EU thinks that..."

Even if the Commission wanted to propose a legally binding smoking ban, it couldn't - the EU doesn't have the competence. Article 152 EC outlines the extremely limited competence of the EU when it comes to health - 152(4)(c) states that the EU can adopt "incentive measures designed to protect and improve human health, excluding any harmonization of the laws and regulations of the Member States." [emphasis mine].

There's also case law on the legality of legislation concerning the tobacco industry (mainly laws on labeling and advertising). Tobacco Advertising (Case C-376/98) and Tobacco Advertising II (Case C-380/03) in particular illustrate the limited extent of EU competence when it comes to health: the ECJ said (as a crude summary) that other legal bases [treaty articles] cannot be used to circumvent the express exclusion of the harmonization of laws in the health area, and that health aspects can be taken into account when shaping legislation as long as health isn't the primary purpose behind the legislation (i.e. legislation affecting the free movement of goods and the ability of magazines with tobacco ads in them to circulate freely in the single market).

So if the EU can't enact such legislation, then why is the Commission making such a big fuss? EUobserver hints at it:

"...a large majority of Europeans favour smoking ban in the workplace (84%), restaurants (79%), as well as also bars, clubs and pubs (65%)."

The Commission is jumping on the bandwagon and trying to look as if it's doing something useful and popular - and this gives the impression that the Commission is more powerful than it really is. It will convince Eurosceptics (further) that the Commission is an extremely powerful body that can interfere with practically anything, while it's likely that most pro-Europeans will have doubts about whether the EU should have such competence in this area. And those neutral to the debate? They probably won't notice it much, but it confuses further the question of who has responsibility for what. David Keating has a good article on the Commission's opportunism and how the announcement could affect perceptions of the Commission.

The trouble is that the Commission is inflating expectations of what it can do without having the power to influence the outcome, so that whatever the result, the Commission is likely to annoy people and loose support and make it look big, powerful, interfering and incompetent, rather than making itself appear a pro-active force acting in the citizens' interests. Perhaps the tendency to make such announcements is linked to the top-heavy nature of the Commission?

There should probably be health warnings for Commission statements in the future, such as:

"Warning: this statement contains irrelevant political blather."
"Warning: this statement could lead to legislation."
"Warning: this statement could be a product of boredom and should not be taken seriously."

*Treaty Establishing the European Community


  1. I find the prospect of pictoral warnings (with gruesome pictures) of Commission initiatives especially fascinating.

    Perhaps mandatory pictures with damaged brains should be introduced, or citizens' consultations arranged(?)

    Smoking is definitely bad, but there is the question of minority rights.

    There is also the question of what the EU is for. A unified foreign, security and defence policy is the great challenge for the 21st century, meddling in individuals' daily life is not.

    If the same arguments were used to prohibit dangers to workers, innocent civilians and children in particular, industry, heating and cars could be banned - for starters.

    By the way, did you notice the blog post by Eurosocialist?

  2. @Eurocentric,
    Nice post. I agree with you that if you think about it, it's of no use for the EU to make that recommendation as it has no competence in the field. So, in the end, it's just bad press for the EU/Commission and a waste of civil cervant time I'd say.
    Check out the lively debate around the issue on my blog:

    Interesting article by Gulf Stream Blues too:

    I really agree with the last point you make that if you follow the logic, and want to promote a better health, then forbid chemicals, cars, pesticides and all these things we know are causing so many cancers, fertility problems, allergies and asthmas. But I guess it's easier just to forbid "people" to do something than to rethink our development model.

  3. I do think that the EU has a role in consumer protection and safety and the "prevention principle" can play a good role here. But the EU should on the whole restrict itself to areas that have a cross-border element or can be dealt with better at a supranational level.

    I would say that smoking (and alcohol) is different from those other health concerns since it has no purpose apart from being a recreational drug. Still, it should be a national competence, along with the legality of drugs.

    The EU is regulating some health practices/treatments (in the name of the single market) now - see this press release I only noticed today:

    I read Eurosocialiste's blog post and I've commented - sorry it's not an especially riveting comment; I don't know what else I can add.

  4. on smoking and drinking in the EU:

  5. Thanks for replying - sorry I'm late in responding, but I was a bit pressed for time.

    Your article highlights an attitude towards smoking that's been taken by some member states and I agree that smoking bans and the like shouldn't be an area of EU competence - and they aren't. There isn't anything in the article that contains evidence of the smoking bans having anything to do with the EU (to be fair, your post was written before I wrote mine, so it's not a direct response).

    While I agree that the EU shouldn't have the competence to pass smoking bans, I do think that the member states should (and do) be able to do so - so I disagree that the state shouldn't have any right to intervene in this area. The quality and practicality of the various laws that have been passed in different countries is a different question, and I won't go into defending them since that's not the point I'm making.

    My main point is that the Commission is creating the impression of action and is damaging its image - and that of the EU - by seeming more powerful than it is and as meddling as well. And it fuels myths over what the EU can and can't do, and is and isn't doing.

    (The other points in the article on Lisbon I also disagree with, but they've been discussed in the Th!nk About It version of the article here:

  6. Announcements for Europeans