The Treaty Establishing the European Community announces the principle that the powers of the European Community (“Community”) are limited to those specifically conferred on it: “The Community shall act within the limits of powers conferred upon it by this Treaty and of the objectives assigned to it therein.” However, experience has shown that, in practice, the allocation of power between the Community decisionmaker and Member States is neither clear nor immutable. For example, there is a traditional perception that it is the responsibility of the Community decisionmaker to implement internal market regulations in order to promote the “free movement of goods” and the “free movement of persons, services, and capital,” while individual Member States retain autonomy in regulating public health. The European Constitution has also formally embraced this longstanding private (market regulation) versus public (health regulation) dichotomy, using it to divide competences formally. However, the public/private distinction is hazy, as reflected by the history of the Community decisionmaker’s regulation of tobacco. Regulation of the manufacture and advertisement of tobacco products necessarily implicates both free market and public health concerns, and a given regulation may be characterized as a market measure in some circumstances and as a public health measure in others.
In its Treaty Establishing a Constitution for Europe, the Community attempts to clarify the allocation of competences. Article III-278 of the Draft E.U. Constitution (“Public Health Article”) is a public health provision that expressly refers to the regulation of tobacco:
5. European laws or framework laws may also establish incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, as well as 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. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.
To many, the Public Health Article reflects a shift toward European federalism by guaranteeing greater power to Member States over their national health regulations while limiting the power of the Community legislature. We argue that in reality, however, this “constitutionalization” of tobacco does not guarantee Member States’ autonomy. As long as the Community decisionmaker can standardize national tobacco laws whenever the functioning of the internal market is at stake, the Community will exercise some degree of control over States’ national health standards.
Part I of this Recent Development charts the progress of tobacco regulation through Community-issued directives, harmonization, and the early jurisprudence of the European Court of Justice (“ECJ”). Part II describes the struggle over the allocation of competences and the illusory public/private distinction, reflected in Federal Republic of Germany v. Parliament and Council (“Tobacco Advertising Judgment”), The Queen v. Secretary of State for Health ex parte British American Tobacco (Investments) Ltd. (“Tobacco Products Judgment”), and in cases now pending before the ECJ. Part III discusses the constitutionalization of tobacco and the ambiguity it engenders with respect to the Community’s federal structure. On the one hand, the Public Health Article can be used as a sword by the Community legislature, allowing intervention of a complementary and supportive nature. Community action may include “monitoring, early warning of and combating serious cross-border threats to health.” On the other hand, the Public Health Article may be used as a shield by States seeking to preserve their disparate public health standards. The Community thus bears the burden of proving that its proposed legislation is actually a market correction measure (rather than a disguised health measure) and does not violate the Subsidiarity Principle. Because of this ambiguity, the provision remains open to interpretation and is susceptible to policy arguments made by either side. Consequently, the constitutionalization of tobacco fails to clarify the allocation of competences and provides little guidance in determining the substantive outcomes of pending disputes.