4 Implementation of the International
Health Regulations
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13501/06
COM(06) 552
| Commission Communication on the International Health Regulations
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| Legal base | — |
| Department | Health |
| Basis of consideration | Minister's letter of 30 November 2006
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| Previous Committee Report | HC 34-xl (2005-06), para 4 (1 November 2006)
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| To be discussed in Council | 30 November 2006
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
4.1 The aim of the International Health Regulations (IHR) is to
prevent and control the spread of disease. The World Health Organisation
(WHO) adopted the first set of Regulations in 1951. They have
been amended four times since then, most recently in 2005. The
new IHR are due to come into effect from June 2007. The Regulations
are legally binding on the parties to them.
4.2 Each of the Member States of the EU is a party to the IHR.
The Commission is not. Article 57(3) of the IHR says that:
"Without prejudice to their obligations under these Regulations,
States Parties that are members of a regional economic integration
organisation shall apply in their mutual relations the common
rules in force in that regional economic integration organisation."
The Commission says that :
"This means, for example, that if the WHO were to recommend
states to refuse entry or departure to certain goods under the
IHR (Article 18(2)), the EU would have to act collectively, at
the initiative of the Commission, as EU single market legislation
prevents MS [Member States] from taking unilateral action."[6]
4.3 Article 152 of the EC Treaty provides that Community action
on public health is to complement national policies. It should
be directed to improving public health and preventing human illness
by promoting research and education. The Article also says that
the Community and Member States are to foster cooperation with
international organisations concerned with public health.
Previous scrutiny of the Commission's proposals
4.4 In November, we noted the Commission's view that some of the
Articles of the IHR are about matters covered by EC law.[7]
In those cases, the Commission maintains, the Community has either
exclusive competence or shared competence with the Member States.
4.5 Parties to the IHR may notify the WHO about their "reservations"
on particular Articles of the Regulations. A party would generally
use a reservation to give notice that it could not or would not
implement an Article.
4.6 The Commission says that no reservations are required for
the Articles of the IHR for which there is EC competence. It also
says that, so far, no Member State has identified the need for
a reservation on a matter for which there is national competence.
But difficulties could arise during the preparations for the implementation
of an Article. The Commission proposes[8]
that, if difficulties arise:
"a common EU approach would be necessary to formally enter
reservations with the WHO, in order to respect the principle of
unity of international representation, as recognised by EC case
law and flowing from Article 10" of the EC Treaty.[9]
The Commission proposes that there should also be EC coordination
to decide a common approach to any reservations of third countries.
4.7 The Commission also makes a number of detailed proposals:
for example, it proposes that Member States should inform the
EC's Early Warning and Response System (EWRS) before they notify
the WHO about a potential Public Health Emergency of International
Concern.
4.8 Finally, the Commission believes that it would be desirable
to agree a Memorandum of Understanding between the EC and WHO
on the role of the EC institutions in implementing the IHR. The
Commission would be responsible for drafting, negotiating and
signing this memorandum.
4.9 The Parliamentary Under-Secretary of State at the Department
of Health (Caroline Flint) told us that the Government attaches
high priority to the global implementation of the IHR. The Regulations
are the best means to encourage all countries to seek to prevent
the spread of disease in ways which are proportionate to the risks
to public health while avoiding unnecessary interference with
international trade and traffic.
4.10 The Government agrees with the Commission that EC bodies
such as the European Centre for Disease Prevention and Control
and the EWRS should help Member States to implement the IHR. The
Minister added, however, that it is the Government's view that
"the case has not been made for the added value of any Memorandum
of Understanding" between the Community and WHO about the
role of EC bodies in implementing the IHR. If there were to be
such a Memorandum, Member States should play a part in the negotiations
with WHO.
4.11 In the Government's view, the key principle is that the Community
should provide practical support for Member States. The Minister
told us that:
"we also need to work through with the Commission and other
Member States the Commission's argument that European law restricts
the border measures that the UK might take in response to a public
health threat."
4.12 We shared the Minister's view that some of the Commission's
proposals are unnecessary or undesirable and we welcomed the Government's
intention to pursue this in discussion with the Commission and
other Member States.
4.13 We were particularly concerned by the tone of the Communication.
It seemed to us that, throughout the Communication, the Commission
had given the provisions of the EC Treaty a very wide interpretation
so as to justify claims for the extension of the Community's competence.
For example, the Commission said that there should be a common
EC approach to entering a reservation about the implementation
of an aspect of the IHR "in order to respect the principle
of unity of international representation, as recognised by EC
case law and flowing from Article 10 of the Treaty establishing
the European Community." We asked the Minister to tell us
whether the Government accepts this interpretation of the Treaty
and EC case law.
4.14 We noted that the Community is not and cannot be a party
to the IHR. We asked the Minister, therefore, whether it is the
Government's view that the responsibility for implementing the
Regulations is vested in the parties to it and that there is a
risk that that line of accountability might be blurred by the
measures the Commission proposes.
The Minister's letter of 30 November 2006
4.15 In reply to our first question, the Minister tells us that
neither the UK nor any other Member State intends to enter a reservation
and the Presidency knows of none by a country outside the EU.
So the Commission's view is unlikely to have any effect. She adds
that "there has in the past been some EU coordination on
a flexible and pragmatic basis and there might be a place for
similar activity in future".
4.16 In reply to our second question. the Minister says:
"I agree that it is not desirable to confuse lines of accountability.
Indeed, in the discussions that have taken place on the Communication
since my explanatory memorandum was submitted [in October], it
has become clear that several member states, like the UK, have
concerns about some of the Commission's proposals, and the Presidency
have produced a note … which highlights the need for further
clarification from the Commission and discussion by member states
before we can agree to a Community role. Nevertheless, we should
not ignore the possibility … that there may be ways in which
European bodies can enhance our ability to implement the IHR effectively."
Conclusion
4.17 We are grateful to the Minister for her replies. We ask
her to send us progress reports on the Council's further discussions
of the Commission's Communication. Meanwhile, we shall keep the
document under scrutiny.
6 Commission Communication, section 2.1, page 4. Back
7
See HC 34-xl (2005-06), para 4 (1 November 2006). Back
8
Commission Communication, section 3.1, page 5. Back
9
Article 10 provides that "Member States shall take all appropriate
measures, whether general or particular, to ensure fulfilment
of the obligations arising out of this Treaty or resulting from
action taken by the institutions of the Community. They shall
facilitate the achievement of the Community's tasks. They shall
abstain from any measure which could jeopardise the attainment
of the objectives of this Treaty." Back
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