Memorandum by the Health and Consumers
Directorate-General, European Commission (AL 71)
Thank you very much for the opportunity to provide
information to the Health Committee's inquiry into alcohol misuse.
Given the relatively short time available for
consultation, I cannot provide you now with an agreed European
Commission legal position. Instead, I would be grateful if you
would consider my remarks as the informed reflections of the Director
General charged with implementing the EU's Health Strategy.
CURRENT EU PUBLIC
HEALTH CONTEXT
Firstly, I would like to provide some background
to the alcohol and public health situation in the European Union.
It is estimated that 55 million people in the EU drink alcohol
to harmful levels, and that, of these, 23 million are considered
to be addicted. Studies indicate that the harmful use of alcohol
is the third main cause of early death and illness in the region
with alcohol estimated to account for around 195 000 deaths
each year across the EU. These include deaths from various cancers,
liver cirrhosis, road traffic and other accidents, homicides,
suicides and neuro-psychiatric conditions. The cost to the EU
economy has been estimated at 1.3% of its GDP (calculated before
the recent financial crisis.)
In response, the Commission adopted an EU Alcohol
Strategy in 2006 which puts in place a framework for the
European Union, Member States and stakeholders to reduce the harmful
consumption of alcohol. We are increasingly seeing discussion
of pricing policies across Europe. Scotland's initiative to consider
minimum pricing is therefore being watched with great interest.
ISSUE OF
THE LEGALITY
OF MINIMUM
PRICING
As far as the issue of the legality of minimum
pricing is concerned, the Commission has recently responded to
a Written Question in the European Parliament saying that while
Community secondary legislation, including Council Directive 92/83/EEC,[70]
does not prohibit Member States from setting minimum retail prices
for alcoholic beverages, any such national measure and its effects
still need to be compatible with other provisions of Community
law, including the EC Treaty's rules on the free movement of goods
(Articles 28-30 EC).
One issue to consider would be to ensure that
such measures are not restrictive to intra-Community trade. The
Court of Justice of the European Communities has ruled that national
rules fixing retail prices for alcoholic beverages could constitute
measures having an equivalent effect to quantitative restrictions
on imports contrary to Article 28 EC. This would be the case
if, for example, prices were set at such a level that imported
products were placed at a disadvantage in relation to identical
domestic products, either because they could not profitably be
marketed in the conditions laid down or because the competitive
advantage conferred by lower cost prices was cancelled out. In
other words, a minimum price fixed at a specific amount may, according
to the circumstances, have an adverse effect specific to the marketing
of imported products and thus constitute an obstacle to the free
movement of goods within the Internal Market.[71]
On the other hand, this would not be the case if pricing rules
applied to all relevant traders operating within the national
territory and if they affected in the same manner, in law and
in fact, the marketing of domestic and imported products.
Another issue to take into account is the extent
to which alternative measures have been considered, particularly
whether there are other measures that could achieve the same public
health gains in a way that is less restrictive to intra-Community
trade. For example, could the same public health gains be equally
ensured by increasing the excise duties on alcohol, rather than
the price?
Against such competition considerations, Article
152 of the EC Treaty also places an obligation on the Community
to ensure a high level of human health protection in the definition
and implementation of all Community policies and activities.
A PUBLIC HEALTH
TEST FOR
ALCOHOL POLICIES
The Commission's view is that all policies,
including those relating to alcohol, should be evaluated upstream
for their potential impact on social, economic and environmental
factors. More specifically, the Community health strategy "Together
for health"[72]
calls for the use of the Health in All Policies (HIAP) principle,
which means strengthening the integration of health concerns into
all policies at Community, Member State and regional levels.
The assessment of health impacts is integrated
into the Commission's Impact Assessment Guidelines[73]
and DG Health and Consumers has provided support for the development
of tools for Health Impact Assessment in the framework of the
Community Public Health Programme.
Moreover, in terms of internal market provisions,
the Treaty allows Member states to restrict free movement based
on public health grounds, provided that these restrictions are
non-discriminatory and proportional.
VOLUNTARY AGREEMENTS
Lastly, as far as the issue of voluntary agreements
to restrict the promotion of alcoholic products is concerned I
tend to agree with the OFT analysis that agreements between economic
operators, such as supermarkets and others, aimed at restricting
the promotion of alcoholic beverages would need to be assessed
in terms of the competition provisions of the EC Treaty, such
as Article 81.
ADDITIONAL REFLECTIONS
Finally, I think it is also worth drawing your
attention to the evolving nature of the public health context.
For example, a recent study undertaken by RAND Europe[74]
explored the link between alcohol affordability, consumption and
harm and came to the following conclusions:
(1) the real value of the EU alcohol minimum
excise duty rates, and of Member States' (MS) alcohol taxation,
has decreased since the mid-1990s in most EU countries;
(2) alcoholic beverages have become more affordable
in most EU countries since the mid-1990s—in some countries
by over 50%; and
(3) there is a positive relationship between
alcohol affordability and alcohol consumption in Europe, and between
alcohol consumption and traffic injuries, traffic deaths and liver
cirrhosis.
I hope that these reflections will be useful
in your inquiry. We await the outcome with interest. Please do
not hesitate to contact me if you need more information.
Robert Madelin
Director-General
26 June 2009
http://ec.europa.eu/health-eu/doc/whitepaper_en.
pdf
http://ec.europa.eu/govemance/impact/docs/key_docs/sec_2005_0791_en.pdf
http://ec.europa.eu/health/ph_determinants/life_style/alcohol/documents/alcohol_rand_en.pdf
70 Council Directive 92/83/EEC of 19 October 1992 on
the harmonization of the structures of excise duties on alcohol
and alcoholic beverages, OJ L 316, 31.10.1992. Back
71
See van Tiggele, Case 82/77, [1978] ECR 25, paragraphs 14 and
18; "Cullet", Case 231/83, [1985] ECR 305, paragraph
23. Back
72
White paper: Together for health: A Strategic Approach for the
EU 2008-2013. COM(2007) 630 final Back
73
European Commission: Impact Assessment Guidelines 2005/2006 SEC(2005)
791 Back
74
RAND Europe (2009), "The affordability of alcohol beverages
in the European Union: understanding the link between alcohol
affordability, consumption and harm" available on Back
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