Safeguarding citizens’ health and well-being

Date: 27/06/1996

By Fiona McHugh

THE public's health has always been jealously guarded by member state governments. After all, few policies win - or lose - votes like health policy does. And few cost more.

Little wonder then, that each time talk of pooling responsibility in this area surfaces, member states shoot it down.

History notwithstanding, the European Commission launched a bold bid to win itself a role in health policy in the European Union in 1991. Bloody and bruised, it emerged from the battle, otherwise known as the Maastricht negotiations, a winner.

The revamped constitution threw health into the EU's arena for the first time. But there was a sting in the treaty's tail. Though member states had given the Commission a brand new policy instrument, they made it blunt enough to ensure there would be no encroachment on national territory.

Article 129 grants the Union the power to forge links between member states in this area, but expressly forbids it from harmonising national health laws - an unusual precautionary step introduced during the talks.

Under that article, the Commission has proposed five cooperation programmes - including the fight against AIDS and cancer - and is drafting another three.

According to another treaty provision, Article 118a, the EU can adopt harmonising legislation, but only to safeguard the health and well-being of the bloc's workers. This was inserted into the treaty when the Single European Act came into force, reflecting member states' determination to create a genuinely level playing-field in the internal market by getting Union-wide agreement on measures which, while deemed essential to protect the health of their citizens, could harm their country's competitiveness unless implemented across the whole of the EU.

Meanwhile, the crisis sparked by British protests over the world-wide ban on its beef exports has underlined the difficulties involved in getting member states to agree on proposals in the highly-sensitive area of food legislation. In a Union of 15 member states with widely differing attitudes towards the content and labelling of food, and the way those foods are produced, battles over the setting of EU-wide standards are a familiar part of the Brussels scene.

As has happened in the case of beef, those insisting on the most rigorous of rules are often accused of protectionism by those favouring a more minimalist approach.

Most spectators agree that, where health is concerned, the Commission's powers are extremely limited - at least in theory. Officially neutered in an area which it has always eyed jealously, some have accused the Commission of sneaking health measures in through the Union's back door.

The charge, needless to say, is denied emphatically - perhaps a little too strenuously - by Health Commissioner Pádraig Flynn's team.

“We have never cheated on legal bases, absolutely not,” proclaims one. “Certainly not!” declares another indignantly.

They are quick to point out that member states have only once contested the legality of a health measure.

The Working Time Directive was adopted by ministers under Article 118a in 1993 but, the subject of a furious dispute between the UK and the Commission, it has yet to come into force.

London argues that the legislation, which seeks to limit the number of hours employees work each week to 48, is a social measure dressed up as a health and safety one - thereby turning it from a proposal requiring unanimous support to get through the Council of Ministers to one falling under qualified majority voting rules.

But the Commission insists there is no deception involved. “You do not have to be a genius to understand that people who work 20 hours on the trot might just fall into a machine and injure themselves,” explains a health official.

So far, the European Court of Justice - in an opinion by one of its advocates-general - has sided with the Commission, but its final verdict has yet to be delivered.

Equally contentious is the proposed ban on tobacco advertising. The Commission, arguing that the patchwork of national tobacco advertising laws broke up the internal market, brought the measure forward under Article 100a of the treaty. But tobacco companies insist that it is a health measure masquerading as an internal market one - a view shared by London.

“We have not seen enough evidence to prove that different tobacco advertising laws distort the market - as far as we are concerned it is a health matter,” said a UK diplomat.

There is some evidence to support that view. After all, the draft directive was drafted by DGV - the Directorate-General responsible for health matters - and not by DGXV - responsible for the single market. Since then, it has been shepherded by Health Commissioners and discussed by health ministers and not those responsible for the single market.

Even the Council of Ministers has cast doubt on the legality of the measure. In a 1993 report, its legal service concluded “that the proposal for a directive as amended by the Commission in 1992 cannot be adopted by the Council on the basis of any article of the treaty”.

The matter has never come to a head because the directive has never been adopted due to deep divisions between member states over the proposal. Were it to be declared law, it would almost certainly be challenged in court by tobacco companies. For the foreseeable future, however, this draft piece of legislation seems doomed to languish in the Council.

Taxes have also been used to achieve health aims. The upward harmonisation of excise duties on tobacco and alcohol has two things in its favour, according to the Commission. It would boost governments' revenue and discourage smoking.

Though Internal Market Commissioner Mario Monti, turning the spotlight back on to the earning potential of taxes, is trying to prevent taxation being hijacked by other Commission departments, he seems willing to concede some ground when it comes to health.

That, according to Flynn, is only right and proper. And, his spokeswoman adds, it is legal. “If a measure has a secondary positive effect, then that surely is a good thing,” she says.

But the question is: should the Commission have a greater say in this area?

The beef crisis has thrown into sharp focus the problems which can arise from non-harmonised health laws. Nevertheless, it seems extremely unlikely that the current Intergovernmental Conference will bolster the Commission's power in this area.

“It is a shame that the EU does not have a real competence,” laments Andrew Hayes, secretary-general of the European Public Health Alliance. “But we have to recognise the political reality.”

As the squeeze on public spending reaches a peak in the run-up to the 1 January 1999 deadline for the creation of a single currency, member states will almost certainly fight any attempt by the Commission to wrest sovereignty from them in a policy area which impinges heavily on national budgets.

After all, health spending in the Union varies dramatically, with Greece spending 5&percent; of its GDP on medical care compared with the 10&percent; lavished by France.

Recognising that efforts to upgrade Article 129 would be wasted, with serious opposition from Germany and the UK almost guaranteed, Flynn seems happy to lie low, concentrating his efforts on persuading member states to accept changes aimed at streamlining decision-making procedures in the health arena rather than seeking more powers.

In the meantime, he is left with little option but to interpret the Commission's existing powers as imaginatively as possible - or, as Flynn himself puts it: “We need a better awareness of the health impact of other policies and to build better links with other directorates-general.”