The European Union has been successful at promoting its tobacco-control standards at the global level. The role of the EU has been facilitated by the convergence between EU standards and the objectives of the global community (A). The leadership of the European Union has been experienced in the negotiation and implementation of the FCTC (B). The European Union did not only manage to become a party to a WHO treaty, but it was also one of the key actors during the whole negotiating procedure. This example illustrates the influence of the European Union to shape international rules in the area of non-communicable diseases. It is consequently argued that the European Union could use this leadership role to propose other international agreements in this field, thus positioning itself as the dominant actor at the global level in the area of non-communicable diseases (II).
A. Convergence at the EU and at the global levels in tobacco control
The EU promotion of public health standards aiming at controlling the consumption of tobacco products at the global level has been facilitated by two factors. First, the EU has developed a strong expertise in this area (1). Its position has evolved over time, ultimately leading to a strict approach towards tobacco manufacturers. Second, the EU position has been met by a strong interest to fight against tobacco consumption at the global level (2). The manufacturing and consumption of tobacco products affect all countries at different stages. This has brought States together in order to face this challenge. Convergence between the EU and the rest of the international community has resulted in the perfect conditions for the successful promotion of EU standards. The European Union has effectively seized this opportunity.
1. EU expertise in tobacco control
Despite some shadows in the EU tobacco-control system (a), EU legislation has strongly evolved over the years. The European Union has developed a strong expertise in the field and it currently has stringent tobacco-control legislation (b).
167 a. Shadows in the EU tobacco-control system
While the overall assessment of the tobacco-control system in the European Union is positive, some shadows remain. On the one hand, the reform of the Common Agricultural Policy (CAP) has not eliminated all tobacco subsidies. On the other hand, the case law on minimum selling prices for tobacco products tends to make it difficult for Member States to adopt measures that could modify smoking habits.
Agriculture affects food, drinks and tobacco products, all of which can have an impact on the health of EU citizens. The CAP should thus strongly take public health considerations into account. However, it is not always the case.773 In the area of tobacco, the conflict between the CAP and public health considerations is apparent in the system of EU subsidies.774 Tobacco subsidies encourage the production of tobacco products and favour smoking.775 The raw-tobacco sector was thus reformed in 2004 and the old subsidies system was abolished. The EU has not granted any specific subsidies for raw tobacco production since 1st January 2010.776 However, tobacco farming is still part of the Rural Development programme.777 The idea of this programme is for Member States to establish rural development measures aiming at creating alternative economic activities for tobacco farmers and at improving infrastructures in those regions.778 However, these programmes are not always properly used and tobacco manufacturers are still getting financial support.779
Another area where public health protection is at risk is the establishment of minimum selling prices for tobacco products by Member States. It is a sensitive issue because of the need to balance free competition, on the one hand, and public health, on the other hand. The
773 Public health is not even mentioned in Article 39 TFEU. See European Public Health Alliance, ‘A Cap for Healthy Living: Mainstreaming Health into the EU Common Agricultural Policy’, 2016, available at https://epha.org/report-a-cap-for-healthy-living/ (last accessed 30 January 2020), p. 4.
774 Anna GILMORE and Martin MCKEE, ‘Tobacco Control Policy in the European Union’ in Eric A. FELDMAN and Ronald BAYER (eds), Unfiltered: Conflicts over Tobacco Policy and Public Health (Cambridge, Massachusetts, Harvard University Press, 2004), p. 233; Paul CAIRNEY, Donley T. STUDLAR and Hadii M. MAMUDU, Global Tobacco Control: Power, Policy, Governance and Transfer (Basingstoke, Palgrave Macmillan, 2012), p. 76.
775 Joy TOWNSEND, ‘Tobacco and the European Common Agricultural Policy: European Gold Kills’ (1991) 303 British Medical Journal 1008, p. 1200; Luk JOSSENS and Martin RAW, ‘Tobacco and the European Common Agricultural Policy’ (1991) 86(10) British Journal of Addiction 1191.
776 European Commission, ‘Raw Tobacco’, available at http://ec.europa.eu/agriculture/tobacco_en (last accessed 2 March 2017).
777 Idem.
778 Johan VAN GRUIJTHUIJSEN, ‘Tobacco Growing in the European Union’, Study conducted as a technical document for the first meeting of the Ad Hoc Study Group on Alternative Crops established by the Conference of the Parties to the WHO Framework Convention on Tobacco Control, 2007, available at http://www.who.int/tobacco/framework/cop/events/2007/ec_case_study.pdf (last accessed 27 January 2020), pp.
9-10.
779 European Public Health Alliance, ‘A Cap for Healthy Living’, op. cit., p. 22.
168 establishment of a minimum price is generally analysed by the Court under the framework of the directives on tobacco excise duties.780 The imposition of a minimum price can also amount to a measure having an equivalent effect to a quantitative restriction under Article 34 TFEU.781 The manner in which minimum prices are established by Member States has evolved over time.
First, Member States tended to directly impose a minimum selling price for tobacco products.782 This was considered to restrict free competition. In more recent cases, Member States have tried to impose a minimum price based on the price of the most popular brand or on the average price of cigarettes.783 This is considered by the Court as being equivalent to establishing a minimum price.784 Member States bring three public health-oriented arguments to justify minimum prices on tobacco products: the need to comply with the WHO FCTC, the need to comply with Recommendation 2003/54 on the prevention of smoking,785 and the possibility to justify such measures under Article 36 TFEU. The Court notes, first, that the FCTC does not impose an obligation on the contracting parties with regard to price policies for tobacco products.786 It then states that ‘no specific conclusions concerning the recourse to systems of minimum prices can be drawn from Recommendation 2003/54, which, furthermore, is not binding’.787 Finally, the Court recalls that Article 36 TFEU can only be invoked as a justification to quantitative restrictions on imports and exports and measures having an equivalent effect. However, the Court considers that minimum prices on tobacco products do not correspond to the definition of a measure having an equivalent effect to quantitative restrictions.788 Additionally, the Court often recalls that public health considerations are already taken into account by the tobacco excise duties directives themselves.789 More recently, Member States have tried to influence
780 Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactures tobacco, OJ L 176 of 5 July 2011, p. 24 (Directive 2011/64); Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, OJ L 291 of 6 December 1995, p. 40.
781 See, by analogy, Judgment of the Court of 23 December 2015 in Case C-333/14 Scotch Whisky Association, EU:C:2015:845, para. 32.
782 Judgment of the Court of 19 October 2000 in Case C-216/98 Commission v Greece, EU:C:2000:571.
783 Judgment of the Court of 27 February 2002 in Case C-302/00 Commission v France, EU:C:2002:123; Judgment of the Court of 4 March 2010 in Case C-197/08 Commission v France, EU:C:2010:111; Judgment of the Court of 4 March 2010 in Case C-221/08 Commission v Ireland, EU:C:2010:113; Judgment of the Court of 4 March 2010 in Case C-198/08 Commission v Austria, EU:C:2010:112; Judgment of the Court of 24 June 2010 in Case C-571/08 Commission v Italy, EU:C:2010:367.
784 Case C-302/00 Commission v France, para. 14.
785 Council Recommendation 2003/54 of 2 December 2002 on the prevention of smoking and on initiatives to improve tobacco control, OJ L 22 of 25 January 2003, p. 31 (Recommendation 2003/54).
786 C-198/08 Commission v Austria, para. 34.
787 Ibid., para. 35.
788 Ibid., para. 38.
789 C-571/08 Commission v Italy, para. 50; C-221/08 Commission v Ireland, para. 53; Recital 7 Directive 2002/10/EEC of 12 February 2002 amending Directives 92/79/EC, 92/80/EEC and 95/59 EC as regards the structure and rates of excise duty applied on manufactured tobacco, OJ L 46 of 14 February 2002, p. 26; Judgment
169 tobacco products prices by imposing different taxes on them.790 The involvement of the European Union in this context is rather limited because Member States are free to design their own taxation system. However, some provisions of the Treaties can make Member States accountable under EU law.791 In Yesmoke, Italian legislation established a higher duty for cigarettes with a retail selling price that was lower than that of cigarettes in the most popular price category. The Court ruled that all cigarettes must be considered as a single category of products, and a minimum duty must be applied to all of them irrespective of their characteristics or price.792 The opposite solution would generate distortions of competition between different cigarettes.793
There is a tension between public health and the free competition of tobacco products. While price control, through prices themselves or through taxes, is an effective tool to fight against tobacco consumption, it can also result in distortions of competition. The CJEU has to balance both interests. In its reasoning, market considerations seem to take precedence when it comes to assessing national measures. However, the EU legislature has been increasingly active in the field of tobacco control, and the Court has preserved these actions.
b. EU tobacco-control legislation
Tobacco-control measures have been adopted and implemented in an ever more stringent manner in the European Union. An increasing amount of legislation has been adopted at EU level and the CJEU has played a crucial role at protecting it.
The fight against tobacco consumption was capital in the development of an EU health policy. The ‘Europe Against Cancer’ programme was the first public health initiative at Union level and led to the introduction of a public health provision in the Treaties in 1992.794 Following these events, the activity of the European Union in the fight against tobacco
of the Court of 9 October 2014 in Case C-428/13 Yesmoke Tobacco, EU:C:2014:2263, para. 35; Recitals 2, 14 and 16 Directive 2011/64.
790 Yesmoke Tobacco; Judgment of the Court of 21 September 2016 in Case C-221/15 Colruyt, EU:C:2016:704;
Judgment of the Court of 6 April 2017 in Case C-638/15 Eko-Tabak, EU:C:2017:277.
791 Articles 110-113 TFEU.
792 Yesmoke Tobacco, paras. 28-29.
793 Ibid., para. 31; Colruyt, paras. 21 and 26.
794 See supra, Introduction, Section I, II, C; Sébastien GUIGNER, ‘La dynamique d’intégration par sédimentation : retour sur l’inscription de la santé dans les compétences de l’Union’ in Estelle BROSSET (ed), Droit européen et protection de la santé : bilan et perspectives (Brussels, Bruylant, 2015), p. 38; Ed RANDALL, The European Union and Health Policy (New York, Palgrave Macmillan, 2001), pp. 96-99; Ed RANDALL, ‘Health Policy and the European Union’ in Valerie SYMES, Carl LEVY and Jane LITTLEWOOD (eds), The Future of Europe: Problems and Issues for the Twenty-First Century (Houndmills/London, Palgrave Macmillan, 1997), pp. 285-287; Christine KADDOUS, ‘Article 152’ in Philippe LÉGER (ed), Commentaire article par article des Traités UE et CE (Bâle/Genève/Munich/Paris/Brussels, Helbing & Lichtenhahn/Dalloz/Bruylant, 2000), p. 1240.
170 consumption was pursued. Around seven directives had been adopted at the beginning of the 1990s on tobacco products, their labelling or packaging, and taxation issues.795 Despite the use of Article 114 TFEU as a legal basis, one of the main goals of these instruments was the protection of public health.796
While the legislative activity of EU institutions continued in the late 1990s, more obstacles were found during that period. Directive 98/43/EC on Tobacco Advertising797 was challenged by Germany before the CJEU.798 The Court declared the directive to be invalid. However, it also stated that ‘the Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made’.799
Following this first statement, further developments confirmed the will of the CJEU to back up the efforts of the EU legislature. Two directives on tobacco products and tobacco advertising were adopted in the early 2000s, and both of them were unsuccessfully challenged before the CJEU.800 In the BAT judgment, the Court endorsed the use of public health as a decisive factor
795 Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, OJ L 298 of 17 October 1989, p. 23 (Directive 89/552); Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products, OJ L 359 of 8 December 1989, p. 1 (Directive 89/622); Council Directive 90/239/EEC of 17 May 1990 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the maximum tar yield of cigarettes, OJ L 137 of 30 May 1990, p. 36 (Directive 90/239);
Council Directive 92/41/EEC of 15 May 1992 amending Directive 89/622/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products, OJ L 158 of 11 June 1992, p. 30 (Directive 92/41); Council Directive 92/78/EEC of 19 October 1992 amending Directives 72/464/EEC and 79/32/EEC on taxes other than turnover taxes which are levied on the consumption of manufactured tobacco, OJ L 316 of 31 October 1992, p. 5 (Directive 92/78); Council Directive 92/79/EEC of 19 October 1992 on the approximation of taxes on cigarettes, OJ L 316 of 31 October 1992, p. 8 (Directive 92/79);
Council Directive 92/80/EEC of 19 October 1992 on the approximation of taxes on manufactured tobacco other than cigarettes, OJ L 316 of 31 October 1992, p. 10 (Directive 92/80). See Tamara K. HERVEY and Jean V.
MCHALE, European Union Health Law: Themes and Implications (Cambridge, Cambridge University Press, 2015), p. 391.
796 The importance of public health protection is underlined in the preambles of these directives; see Recitals 4-7 Directive 89/622; Recital 8 Directive 90/239; Recitals 7, 9, 11, 12 and 15 Directive 92/41.
797 Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, OJ L 213 of 30 July 1998, p. 9 (Tobacco Advertising Directive I).
798 Judgment of the Court of 5 October 2000 in Case C-376/98 Germany v Parliament and Council (Tobacco Advertising I), EU:C:2000:544.
799 Tobacco Advertising I, para. 88.
800 Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, OJ L 194 of 18 July 2001, p. 26 (Tobacco Products Directive I or Directive 2001/37);
Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, OJ L 152 of 20 June 2003, p. 16 (Tobacco Advertising Directive II); Judgment of the Court of 12 December 2006 in Case C-380/03 Germany v Parliament and Council (Tobacco Advertising II), EU:C:2006:772; Judgment of the Court of 14 December 2004 in Case C-210/03 Swedish Match, EU:C:2004:802;
171 in the adoption of a directive.801 It contended that the obligations to include information regarding the tar, nicotine and carbon monoxide levels and the risks to health posed by tobacco products were appropriate measures for attaining a high level of health protection.802 In Arnold André and Swedish Match, the Court examined the potential effects of tobacco consumption on public health. It mentioned ‘the real danger’ of oral tobacco products.803 It relied on specific scientific knowledge and concluded that, at the time where the Tobacco Products Directive I was adopted, there was a strong controversy on whether oral tobacco products could cause cancer of the mouth and whether they could be used as substitutes for cigarettes. Accordingly, the EU legislature could not conclude that the consumption of these products presented no danger at all to human health.804 In Swedish Match, the Court examined the right to property and the freedom to pursue a profession.805 However, the balance between those rights and the protection of public health tilted in favour of the latter.806 Consequently, the Court developed a strong position on public health protection in the European Union through its case law on tobacco control.
This position has not weakened over time. Instead, it has rather expanded, as inferred from the most recent judgments on tobacco-control legislation.807 These judgments result from the adoption of the Tobacco Products Directive II in 2014.808 In Philip Morris, the Court analyses the dangers that tobacco products with characterizing flavour present for health. The Court strongly relies on the guidelines for implementation of the FCTC and states that they should have a decisive influence when adopting rules in the area.809 The stringent use of those guidelines is significant considering their non-legally binding nature.810 The Court assesses the
Judgment of the Court of 14 December 2004 in Case C-434/02 Arnold André, EU:C:2004:800; Judgment of the Court of 10 December 2002 in Case C-491/01 British American Tobacco (BAT), EU:C:2002:741.
801 BAT, para. 62; see also Arnold André, para. 32; Swedish Match, para. 31; Tobacco Advertising II, para. 39.
802 BAT, para. 131.
803 Arnold André, para. 47; Swedish Match, para. 49.
804 Arnold André, para. 49; Swedish Match, para. 51.
805 The Charter of Fundamental Rights of the European Union was not legally binding at the time, so the Court qualified those rights and freedoms as general principles of EU law.
806 Swedish Match, para. 74.
807 Judgment of the Court of 4 May 2016 in Case C-547/14 Philip Morris Brands and Others, EU:C:2016:325;
Judgment of the Court of 4 May 2016 in Case C-477/14 Pillbox 38, EU:C:2016:324; Judgment of the Court of 4 May 2016 in Case C-358/14 Poland v Parliament and Council, EU:C:2016:323; Judgment of the Court of 30 January 2019 in Case C-220/17 Planta Tabak, EU:C:2019:76.
808 Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC, OJ L 127 of 29 April 2014, p. 1 (Tobacco Products Directive II).
809 Philip Morris, paras. 108-114; Poland v Parliament and Council, paras. 42-47.
810 See Judgment of the High Court of Justice of 19 May 2016, British American Tobacco (UK) Limited and Others v Secretary of State for Health, [2016] EWHC 1169 (Admin), para. 260: ‘it might be going too far to say, in relation to non-mandatory parts of the FCTC, that both the FCTC and the WHO Guidelines are “decisive”’.
172 prohibition of certain claims in tobacco packaging from a fundamental rights perspective. While a fundamental rights analysis had already been undertaken in Swedish Match, such analysis takes a new dimension here, as the Charter is currently a legally binding instrument with the same legal value as the Treaties.811 The Court balances the freedom of expression and information and health protection.812 It concludes that ‘human health protection — in an area characterised by the proven harmfulness of tobacco consumption, by the addictive effects of tobacco and by the incidence of serious diseases caused by the compounds those products contain that are pharmacologically active, toxic, mutagenic and carcinogenic — outweighs the interests put forward by the claimants in the main proceedings’.813 A similar analysis is carried out for tobacco products with characterizing flavours. The applicants contend that the prohibition of such products can have disproportionate negative economic and social consequences. However, when weighing up such impact, on the one hand, and the obligation to protect public health established in the Treaties and the Charter, on the other hand, the Court concludes that the prohibition is not disproportionate.814
In Pillbox 38, the applicants challenge the validity of the rules on electronic cigarettes adopted in the Tobacco Products Directive II. The Court states that ‘the question of health risks linked to the consumption of electronic cigarettes is the subject of heated debate between the parties to the present proceedings which rely, in support of their arguments, on multiple
In Pillbox 38, the applicants challenge the validity of the rules on electronic cigarettes adopted in the Tobacco Products Directive II. The Court states that ‘the question of health risks linked to the consumption of electronic cigarettes is the subject of heated debate between the parties to the present proceedings which rely, in support of their arguments, on multiple