Alison Wright-Reid, Martin McKee and Laura MacLehose
The EU and public health
To understand the role of the EU in the area of public health it is necessary to look back at the historical development of European integration. The EU arose from the 1950 Schuman Plan, which sought to ensure that the war in Europe that had ended only five years previously, which was the third between France and Germany in under a century, never happened again. The immediate goal was to pool coal and steel production in France and Germany, so limiting the ability of either to act militarily against the other, placing it under a supra-national authority. This concept was formalized in the 1951 European Coal and Steel Community (ECSC), one of the precursors of the European Economic Community and subsequently the EU. Thus, while the EU is a political entity, its roots are firmly based in economic cooperation and the promotion of free trade.
As in all arrangements to promote free trade, considerations of public health cannot be ignored. Historically, there has always been a tension between the urge to ease the flow of goods across borders while preventing the simultaneous movement of infectious agents, most notably in the institution of quarantine by the Venetian Republic, which was especially vulnerable to plague and chol-era due to its trading links with the Black Sea and the Arabian peninsula respectively.
Consequently, protection of health was included within the 1957 European Economic Community (EEC) Treaty, although only to the extent of providing a basis for action to restrict trade where health is threatened. Specifically, it per-mitted restrictions on imports and exports between Members States to protect the “health and life of humans, animals or plants”. The rather general nature of this provision was subsequently qualified following the Cassis de Dijon case in
the European Court of Justice (ECJ), which established the principle of portionality. In other words, any action taken to restrict trade should be pro-portionate to the objective being pursued and not achievable in another way, such as enhanced labelling. Any action must also be part of a “seriously con-sidered health policy” and be necessary to protect health while going no further than is necessary.
The unsatisfactory nature of these provisions was exposed by the BSE scandal in the 1990s, which was ultimately addressed under provisions relating to safe-guarding agricultural markets rather than concern for human health. The les-sons from this episode had a major impact on how public health was handled in the European Commission, including the creation of a new Directorate-General for Health and Consumer Protection.
The perennial challenge facing those working at the interface between health and trade policies is when to act, given that sufficient evidence of harm is often unavailable until it is too late. This dilemma has given rise to the concept of the
“Precautionary Principle”, which in essence means that where there are poten-tial serious or irreversible threats to health a lack of scientific evidence should not be used as a reason for failing to put in place effective measures to counter this possible threat. The principle was set out in a non-binding Communication from the Commission in 2000 (Commission of the European Communities 2000). However, it is not yet enshrined in any binding EU legislation in relation to human health,1 although the EU (and individual Member States) are bound by it in the context of actions governed by World Trade Organization (WTO) rules.
Health did, however, appear in some other places in the original treaties. The Treaty establishing the European Atomic Energy Community included sions pertaining to radiation safety and research and the ECSC included provi-sions relating to the working conditions of coal and steel workers, including assessment of threats to their health. Of course, as noted elsewhere in this book, many aspects of the Treaties have implications for health systems (such as legis-lation relating to the free movement of personnel) but an explicit consideration of public health had to wait for the 1992 Maastricht Treaty, which contained a specific Article (Article 129) on public health, subsequently amended as Article 152 in the 1997 Treaty of Amsterdam.
It should also be noted that the Member States did feel able to take action on public health prior to the Maastricht Treaty, in particular by establishing the Europe against Cancer programme, which in turn set a precedent for the Europe against AIDS programme. These programmes were justified on the basis that the European Community has established an objective of promoting “an acceler-ated raising of the standard of living”, illustrating that action is possible even on rather dubious legal grounds when the political will exists.
Article 129 and beyond
Article 129 of the Maastricht Treaty required that “the Community shall con-tribute towards ensuring a high level of human health protection by encouraging cooperation between the Member States and, if necessary, lending
support to their actions”. It continued “Community action shall be directed towards the prevention of diseases, in particular the major health scourges, including drug dependence, by promoting research into their causes and their transmission, as well as health information and education”. To achieve these goals, it permitted adoption of “incentive measures, excluding any harmonisa-tion of the laws and regulaharmonisa-tions of the Member States”.
At Amsterdam, Article 152 went further in promoting a broad view of public health through calling for consideration of health in all EU activities, stating that “A high level of health protection shall be ensured in the definition and implementation of all Community policies and activities”. It then goes on to reinforce the priorities outlined in the Maastricht Treaty stating:
Community action, which shall complement national policies, shall be dir-ected towards improving public health, preventing human illness and dis-eases, and obviating sources of danger to human health. Such action shall cover the fights against major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education.
Prevention of drug related health damage is again mentioned specifically, essen-tially as this was a means to ensure that it was treated as a public health issue and not, as some wished, as simply a criminal justice matter. In addition, safety related to blood and blood products and organs is mentioned for the first time.
The Maastricht and Amsterdam Treaty provisions for public health recognize, for the first time, that while health care remains the preserve of national author-ities, there are public health benefits to be gained by means of cooperation through the institutions of the EU. In reality, cooperation between govern-ments in areas of public health had always taken place, either on a government to government basis or through the World Health Organization. This at last recognized the importance of tackling some of the major threats to human health, such as the spread of communicable disease or promotion of tobacco at the level of the EU.
However, while the inclusion in the Treaty of a European competence in pub-lic health was widely welcomed, at least by those with an interest in promoting health, the Articles have been criticized, in particular because of the ambiguities and uncertainties in their wording. For example, the term “scourges”, used to indicate threats to health, is nowhere defined, although this vagueness has also allowed the Commission to support a variety of public health related activities requiring coordinated action at the EU level. In particular, as will be described in more detail in the next chapter, it has supported a range of initiatives in communicable disease surveillance.
Yet the scope for action on public health is heavily circumscribed. Article 152 only permits adoption of “incentive measures designed to protect and improve human health, excluding any harmonisation of the laws and regulations of the Member States”. Even in an area where it is widely agreed that action was needed, in the wake of scandals in which blood products were contaminated with HIV and Hepatitis C, the Article specifies that “measures . . . shall not affect national provisions on the donation or medical use of organs and blood”.
While the Article requires that health considerations should be taken into
account in all EU policies, unlike the situation with environmental protection where the precautionary principle is endorsed, the means of taking health con-cerns into account is unclear, with commentators frequently drawing attention to the incompatibility of this goal with the provision of subsidies for tobacco production.
One area where Article 152 is especially problematic is its specific statement that health systems are exclusively a matter for national governments. Else-where in this book it has been noted how, given that most of the inputs into health systems are subject to EU law, this effectively subjects health systems to arguments based on competition law without a possibility to take consider-ations of health into account. It also has the paradoxical effect of excluding the one sector that is arguably most closely related to promotion of health from consideration in health policy discussions. In summary, therefore, the present wording seems to permit action where there is consensus, but obstruct it where there are strong vested interests opposing health promoting activities (see also Chapter 14).
As this brief review shows, a competency in public health at the EU level is a relatively new concept and the measures available to achieve its somewhat undefined goals are themselves unclear. Yet, as will be described below, progress has been made in a number of key areas, building on the provisions in the EU treaties, with implications for enlargement. Yet several questions arise. How easy will it be for candidate countries to raise standards where necessary to EU levels? On the other hand, given that some candidate countries have already gone beyond what is required in the EU, will they have to dilute their policies?
Are existing EU level initiatives in the field of public health sufficiently robust to respond to the needs of an additional 15 countries, many with very different health needs from the existing Member States? And what preparations are being made for enlargement?
To consider some of these questions this chapter and the next one will look at four key areas: health and safety, communicable disease surveillance and con-trol, and, in Chapter 14, policies on tobacco and alcohol.
Health and safety legislation is selected as it exemplifies what is commonly, but falsely, seen as a tension between economic performance and health. Health and safety legislation, as noted earlier, was the first health related area in which the European Communities had competence. As the EU expands, it is important to assess how current requirements will impact on the candidate countries.
Communicable disease control invokes the original tension between free trade and public health and represents an area where concerted European action has long been needed, if slow to develop, simply because micro-organisms have always enjoyed free movement, being completely unconstrained by national frontiers.
Health and safety at work: The case for a level playing field Health and safety legislation is an essential response to market failure. In an ideal world, employers would invest in safety to reduce damage to their human and other resources, and workers would shun highly paid but dangerous work to
maximize their working life. In reality, the short-termism that dominates unregulated free markets creates incentives for employers and workers to go for immediate gains at the expense of longer-term costs, many of which are borne by others.
Poor employers can flourish for quite some time, profiting while competitors spend time and money eradicating or minimizing safety problems. The poor employers simply consume people, discarding those too ill or injured to con-tinue in employment, so transferring costs to the state, to insurance schemes and to their workers and their families.
The costs of poor safety are considerable: even in the current 15 Member States breaches of safety cost between 2.6% and 3.8% of GNP, or from 1% to 5%
of operating profits in most sectors. Each year almost 5500 lives are ended in industrial accidents. A similar number are permanently disabled and 4.8 million people are unable to work for at least 4 days – many of these people will be badly injured or maimed. The United Kingdom has low rates of industrial injury, but even there an individual is twice as likely to be killed at work than to be mur-dered, and ten times as likely to die from asbestos exposure. If the United King-dom’s experience is typical, then 140 000 EU workers are, each year, disabled as a consequence of their work. One single health risk, asbestos, may claim as many as half a million European lives (Murray and Lopez 1996). The personal costs of inadequate health and safety are considerable. Of people sufficiently injured to claim workers’ compensation [or the equivalent] nearly a quarter become dependent on state welfare, making this the third most common route into welfare dependency (Quinlan and Mayhew 1999). A study of people who have suffered from work related upper limb disorders showed that their promo-tion prospects fell by more than half, and that compared with uninjured col-leagues they were twice as likely to become divorced and three and a half times as likely to lose their home (Morse et al. 1998). In the long term, reducing risks to health and safety increases productivity and profitability. The World Bank has estimated that two-thirds of occupationally determined loss of healthy life years could be prevented by occupational health and safety programmes. But, in the short term the strong externalities associated with health and safety policies allow some firms to make profits at the expense of more conscientious competi-tors. Likewise, firms in a country with poor safety standards can operate with a lower cost base than in safer states. To ensure a level playing field, the EU has imposed minimum health and safety standards. No Member State can ignore them but each, as the ECJ has ruled, has “full powers to adopt or maintain national measures which guarantee workers a higher standard of protection”.
European legislation on health and safety
As noted previously, Europe’s role in health and safety stretches back to 1951 when the European Coal and Steel Community established a programme of research and standard setting, and created special commissions for the steel and mining industries [including offshore oil wells]. In addition, the original six countries agreed the Euratom Treaty, creating a requirement to establish stand-ards of protection in the nuclear industry. In 1957, the Treaty of Rome allowed
for the introduction of provisions on health and safety if they were agreed unanimously by the Council of Ministers. Article 100 of the Treaty concerned maximum standards, while Article 118 allowed for minimum standards, but for employed people. Thus, even now, the more than 20 million workers who are themselves employers or are self-employed are only protected to the extent that governments have chosen to exceed the EU minimum. Some Directives were made under these provisions, but there was little progress until, in 1974, the Council initiated a social action programme that included specific reference to health and safety and led to new Directives on safety signs and vinyl chloride monomer. That programme also produced the Advisory Committee on Safety Hygiene and Health Protection at Work, which became the main forum for employers, trade unions and representatives of national authorities to debate the development of a detailed European health and safety policy.
The first Action Programme on health and safety, announced in 1978, led to more legislation, most significantly the “harmful agents Directive” (80/610/
EEC, later amended by 88/642/EEC) and the asbestos, lead and noise Directives.
Six years later, the second Action Programme was more extensive but little faster, since the need for a unanimous decision by Council effectively gave any nation the power of veto. The need for unanimity not only prevented legisla-tion from being agreed but it also produced distorlegisla-tions in Directives that are being not just perpetuated but exaggerated in next-generation Directives. This obstacle was removed in 1986 by the Single European Act which introduced qualified majority voting for health and safety Directives, and permitted a very ambitious third Action Programme in 1987 (to prepare for the single market in 1992). This third programme was spearheaded by the Framework Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work. That Directive and its successors have become the dominant source of new health and safety law in Member States. In establishing these minimum standards, the EU’s aim is to achieve harmoniza-tion, a more ambitious goal than simple convergence of national law. Harmon-ization has several aims. One is to give workers similar protection in different Member States. Another is to ensure that health and safety does not become marginalized as a consequence of competition. A third is to ensure that goods that move freely within the EU are safe. The safety of goods was addressed in the Single European Act with changes to Article 100A of the Treaty of Rome, result-ing in the “new approach” product Directives, supported by the European standards organizations CEN and CENELEC. Article 100A Directives have included the machinery Directive (89/392/EEC) and the personal protective equipment Directive (89/686 EEC). Essentially, these laws set maximum stand-ards, such that, where an item has been approved as meeting the appropriate standard by a qualified body in one Member State, another Member State can-not require that the testing be repeated, or that more stringent standards be met.
In the mid-1990s EU momentum on health and safety diminished as deregu-latory pressures (including pressure from the Anglo-German Deregulation Group and from the Molitor Group) increased. Qualified majority voting had unleashed a considerable quantity of legislation, so to some extent a breathing space was welcomed. However, the consequences have been fewer Directives, less penetrating Directives and, allegedly, a tendency for Member States to treat
the minimum requirements in Directives rather as though they were desirable targets. For example, in the United Kingdom there is constant pressure to avoid
“gold-plating” Directives during transposition into national law.
Article 118a states that Directives should avoid imposing administrative, financial and legal constraints in a way which might hold back the creation and development of small and medium-sized enterprises (SMEs). SMEs are an increas-ingly important source of new employment, particularly in the candidate coun-tries, and are a key element in the EU’s employment strategy. Unfortunately it is becoming clear that SMEs are often significantly more dangerous employers than large enterprises.
How much detail should health and safety legislation go into? A fanatical level of detail in rules on safety has a certain appeal. But it also has considerable drawbacks. The scale of regulation can easily exceed the scope of any
How much detail should health and safety legislation go into? A fanatical level of detail in rules on safety has a certain appeal. But it also has considerable drawbacks. The scale of regulation can easily exceed the scope of any