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.

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.