Wednesday 20 March 2013

Legal foundations for alcohol policy within the European Union

Provisions from European legal instruments with commentary,
by Jonathan Goodliffe, solicitor, England and Wales
March 2013

Introduction
This note is aimed at identifying the main articles in 3 European legal instruments which support the development of alcohol harm reduction strategies within the European Union. This is not the only relevant material but, with a view to keeping things brief, this note focuses on the most significant provisions, expressed in the highest level terms.

The 3 most significant legal instruments within the European Union are:

• the Treaty on European Union,
• the Treaty on the Functioning of the European Union, and
• the Charter of Fundamental Rights.

The Charter covers similar ground to the European Convention on Human Rights.

Treaty on European Union

[Replacing the original Treaty of Rome in 1957, framed in significantly different terms.]

Preamble

...

DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields.

...

• Commentary: emphasis supplied. Public health, and therefore the reduction of alcohol related harm, is arguably central to economic and social progress.

Article 2

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

• Commentary: emphasis supplied. Arguably alcohol harm reduction strategies are central to the maintenance of human dignity.

Article 3

1. The Union's aim is to promote peace, its values and the well-being of its peoples.

• Commentary: “well-being” is thus an aim. Other objectives of the Union, such as free trade and competition, are important, but not primary “aims” in themselves.

Treaty on the Functioning of the European Union

Preamble

...

AFFIRMING as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples,

RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,

...

• Commentary: again “constant improvements of the living and working conditions of their peoples” is the objective. Removal of obstacles, e.g. through trade and competition policy, is the means to that end.

Article 6

The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be:

(a)    protection and improvement of human health;

....

• Commentary: the first of 7 aims which are the primary competence of member states, to be supported by the Union. First of 3 references to health as an aim.

Article 7

The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.

• Commentary: the reduction of harm from alcohol misuse, within the overall aims of promoting well-being and the protection of health, and the objective of improving living and working conditions, is not subordinate to trade and competition law. On the contrary competition policy and trade regulation (and de-regulation) should be applied consistently with health policy. This suggests that where the removal of barriers to trade in alcohol increases harm levels counterbalancing measures are appropriate.

Article 9 

In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of … human health.

• Commentary: second reference to health as an objective.

Article 34

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

• Commentary: a key element in the promotion of trade between member states.

...

Article 36

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

• Commentary: italics supplied. The requirement that prohibitions and restrictions should not be applied more than is “necessary” (a gloss on “justified”) to protect the interest in question was added by the European Court at a time before the treaties had acquired their current form (Commission v Germany [1979] ECR 2555). Arguably it should be reinterpreted in the light of the current high level objectives identified above.