A new EU Alcohol Strategy? - European Union Committee Contents


APPENDIX 4: EU COMPETENCE


1.  Self-evidently, the EU can take action in the fields covered by this report only to the extent that it has competence to do so under the Treaties. In 2006, when the EU Alcohol Strategy was formulated, those Treaties were the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). While the Member States retained primary competence in the field of health, Article 3(1) TEC provided that the activities of the Community should include "a contribution to the attainment of a high level of health protection".[266] This was expanded on in Article 152 TEC which was the basis of the Strategy.

2.  The Treaty of Lisbon did not alter the fact that the primary competence in health matters remains that of the Member States, but did make significant changes. The principle of conferral, previously in Article 5 TEC, is now explained more fully in Article 5 of the amended TEU. In particular, it is now spelt out that "the Union shall act only within the limits of the competences conferred on it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States."[267]

3.  The areas of Union competence are now spelt out in Title I of Part One of the Treaty on the Functioning of the European Union (TFEU). Article 4(2) TFEU lists, among the areas where there is shared competence between the Union and the Member States, "(k) common safety concerns in public health matters, for the aspects defined in this Treaty". Article 6 TFEU lists, among the areas where the Union has competence "to support, coordinate or supplement actions of the Member States", "(a) protection and improvement of human health".

4.  Article 152 TEC is now superseded by Article 168 TFEU. The first two paragraphs of Article 168(1) read as follows.

Box 1: Article 168(1) TFEU
A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health.

5.  The second paragraph of Article 168(2) explains the procedure for such action, the competence of the Commission, and in particular its power to act on its own initiative.

Box 2: Article 168(2) TFEU

The Union shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action. It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.

Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.

6.  Finally Article 168(5), which is new in the TFEU, makes a specific mention of alcohol abuse.

Box 3: Article 168(5) TFEU

The European Parliament and the Council … may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and 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.

7.  There are many other provisions of the TFEU giving the Union competence in areas which impinge directly and indirectly on action on alcohol abuse, of which the following are the most important:

·  Article 36, a derogation from the principle of free movement of goods, which provides that the prohibitions on quantitative restrictions on imports do not preclude prohibitions or restrictions justified on grounds of the protection of public health-a provision of particular significance for minimum unit pricing;

·  Article 53(1), applied to services by Article 62, the legal base for the Audiovisual Media Services (AVMS) Directive, which includes in Article 22 restrictions on the television advertising of alcoholic beverages;

·  Article 114(3) which requires the Commission, when making proposals for the approximation of laws which concern health, safety, environmental protection and consumer protection, to "take as a base a high level of protection, taking account in particular of any new development based on scientific facts";

·  Article 169 on Consumer Protection, the legal base for Regulation 1169/2011 on food labelling;

·  Articles 179-188 and 190 dealing with Research.


266   Article 3(1) (p) TEC Back

267   Article 5(2) TEU Back


 
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