Tuesday 12 October 2010

Is Dalli really going to introduce a European smoking ban?

"Commission preparing pan-European smoking ban" exclaims the EUobserver:

"The European Commission is preparing to introduce legislation in 2011 to ban smoking in public places right across the union.


Health commissioner John Dalli has said [...] "We need a complete ban on smoking in all public spaces, transport and the workplace," he said in an interview on Monday (11 October) with German daily Die Welt."

Gulf Stream Blues has picked up on the story, noting that the US hasn't even brought in a federal law on smoking bans, so for it to be achieved at the European level would be a big step:

"For European federalists, it would be impressive if the EU were able to enact a union-wide social/health law that the United States has never even attempted to enact federally. But for Eurosceptics, such a move will surely be seen as un inexcusable intrusion not only on member state sovereignty but on people's individual civil liberties."

But is the Commission going to introduce a pan-European smoking ban? I doubt it.

Tougher on smoking yes, European smoking ban no:

The news of this smoking ban comes from an interview the health Commissioner, John Dalli, had with the German newspaper Die Welt, published yesterday. While the Commissioner indeed wants to bring in legislation to make smoking more unattractive, he didn't exactly say that he was planning to introduce legislative proposals for a pan-European smoking ban:

"Er kündigte an, dass die Kommission im kommenden Jahr neue Gesetzespläne vorlegen werde. Ziel der neuen Tabakproduktrichtlinie werde es sein, Rauchen in allen EU-Ländern weniger attraktiv und weniger gesundheitsschädlich zu machen. Dies könnte beispielsweise durch eine maßgebliche Verringerung giftiger und süchtig machender Inhaltsstoffe wie Nikotin geschehen."

Own translation: "He [the Commissioner] announced that the Commission will introduce new legislative proposals in the coming year. The goal of the proposals will be to make smoking less attractive and harmful in all EU countries. This could be done, for example, by reducing toxic and addictive substances [contained in cigarettes], such as nicotine."

The EU already regulates the packaging of cigarettes and the contents of cigarettes (levels of tar and nicotine) under Directive 2001/37/EC (link). The Commission has indeed launched a consultation on how to strengthen this legislation to make the packaging less attractive and to reduce the harmful contents of cigarettes. Note that this is based on the legal bases in the Treaty relating to the single market - though health is a major concern here, the harmonisation is based on ensuring a single market to prevent restrictions on imports, etc.

The EU also legislates on the taxation on cigarettes through its competence in the area of VAT (to prevent smuggling, so it is still a single market related measure). The relevant legislation can be found here. So there's plenty of scope for legislative proposals in the area of tobacco products and the EU can take a harder line on them.

No European Rauchverbot:

On smoking bans, Die Welt reports:

"Dalli forderte zudem die konsequente Einführung von rauchfreien Zonen in der EU. „Wir brauchen ein komplettes Rauchverbot in allen öffentlichen Räumen, Verkehrsmitteln und am Arbeitsplatz“, sagte der aus Malta stammende Konservative. Ausnahmen für Eckkneipen und Bierzelte halte er nicht für sinnvoll. Schließlich gehe es „nicht nur um die Gesundheit der Besucher, sondern auch der Angestellten“. Zu wirtschaftlichen Begründungen von Ausnahmeregelungen beim Rauchverbot sagte Dalli, es könne nicht sein, dass der wirtschaftliche Vorteil wichtiger sei als die Gesundheit der Menschen."

Own translation: "In addition, Dalli demands the introduction of smoke-free zones in the EU. "We need a complete smoking ban in all public places, public transport and in the workplace," said the Maltese conservative. Exceptions for corner bars and beer tents do not make sense. Finally, it is not only about the health of the visitors, but also that of the employees." On the economic justifications of exceptions to the ban Dalli said that the economic benefit could not be more important than people's health".

Very strong words in support of a smoking ban across Europe, but it's separate from the suggestions of legislative proposals. Last year, the Commission introduced a proposed - non-binding - Recommendation that Member States introduce smoking bans and work to discourage smoking. I wrote at the time that claims that the EU was introducing a smoking ban were wrong in not just that case, but in the sense that the EU is precluded from harmonising health laws under the Treaties (and this is still the case under article 168 TFEU). I stand by my argument. A smoking ban in public places does not concern the single market and internal EU trade, so I cannot see how harmonisation of smoking bans could take place under the internal market heading, and such harmonisation is excluded from the competence of the EU.

In addition, on the Commission's health policy page, there is no mention of a proposed ban, while there is a link to the consultation on strengthening labelling/contents rules for tobacco products. So I think that talk of a Europe-wide ban on smoking in public places is just an over-excited media response to the German interview.

I'm chalking this one up as a Euromyth.

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