THE DIVISION OF COMPETENCES
IN THE EUROPEAN UNION

Directorate-General for Research
Working Paper
Political Series
- W 26a -


F. EXCURSUS — A NORMATIVE "CASE-STUDY": THE TOBACCO ADVERTISING DRAFT DIRECTIVE [6]

The purpose of this case study is to take the reader through an actual controversy concerning a controversial piece of draft legislation. Our aim is to remain within the functional, purpose oriented division of competences in the Treaties and to argue, streneously, that even within such a system a legally rooted argument can be made for a self-limiting approach to competences. We adopt an «Advocacy» mode for this Case Study. We do not wish to pretend that alternative legal constructs do not exist. We present this as advocacy for an approach that in our view ought to be taken on this paradigmatic example.

This Draft Directive -- proposed as a measure based on Article 100a EEC -- would ban all forms of advertising for tobacco products, both direct and most indirect forms, throughout the territory of the Community. [7]

The Legal Affairs Committee of Parliament divided sharply on its compatibility with the competences of the Community and we believe that it presents the best possible case study of the conundrum of competences.

It is clear that the proposed ban on tobacco advertising has substantive appeal to important sections of opinion in Europe. It is forcefully argued that such a ban will have a positive social and health impact. We have made the assumption that the linkage between smoking and serious hazards to health including the disturbing statistics on smoking-related deaths is well-established.

The actual and potential impact of print and other advertising of tobacco products on the incidence of smoking is a more controversial issue. Whether tobacco advertising increases the incidence of smoking or only affects brand selection by existing smokers is a matter of fact which we did not and could not examine. We have, however, for the purposes of this Study assumed here too that a link between advertising and an increased incidence of smoking does, to a larger or smaller extent, exist. By accepting the assumption that smoking does constitute a serious health hazard and by assuming a linkage between advertising of tobacco products and the incidence of smoking we are able to pose the problem in its starkest and hardest form:

We are looking at a measure which, on the one hand, is promoted as a means -- perhaps even an effective means -- to address a serious public health concern. If so, it would be in the public interest to enact the Directive in its current sweeping and totalistic form. This supposed interest must, however, be balanced against an equally grave question which is also of serious public concern: Does this draft legislation, with all its supposed benefits -- which we are willing to assume -- exceed the constitutionally mandated competences and powers of the European Community?

The Community shall act within the limits of the powers conferred upon it ... and of the objectives assigned to it therein. (Article 3b Maastricht)

Immediately we see why the problem of competences is so acute. On the one hand no one can deny the public health benefit that at least some form of regulation would have on tobacco advertising. But if we are concerned with the issue of the limits (or the absence thereof) to Community competences; the fear that "Brussels" has "gained power" in an increasingly large number of areas -- areas which should remain within the province of the Member States independently of the wisdom or otherwise of the content of proposed Community legislation cannot be brushed aside.

There is general agreement among the Institutions and the Member States regarding the principle that the Community does not have, and should not have, unlimited jurisdiction and powers. It is, of course, very easy to pay lip service to these principles when they fall in line with a desirable outcome. However, commitment to constitutionality -- in this case the principle of limited Community competences -- is tested when the specific consequences are problematic and require, as is the case in hand, that one refrain from enacting a measure which promotes a policy which may be favoured on its merits.

The tobacco advertising illustrates another conundrum. The Treaty of European Union, and in particular the chapter on public health Title X TEU - Article 129 — specifically excludes any harmonization of health laws and regulations of the Member States. [8]

1. The Community shall contribute towards ensuring a high level of human health protection by encouraging cooperation between the Member States and, if necessary, lending support to their action.

Community action shall be directed towards the prevention of diseases, in particular the major health scourges, including drug dependence, by promoting research into their causes and their transmission, as well as health information and education. Health protection requirements shall form a constituent part of the Community's other policies.

2. 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.

3. The Community and the Member States shall foster cooperation with third countries and the competent international organizations in the sphere of public health.

4. In order to contribute to the achievement of the objectives referred to in this Article, the Council:

Under existing Community law, in the field of public health, the Community only has the competence to do no more than is strictly necessary to ensure that disparate Member State public health measures do not impede the proper functioning of the Internal Market. How should one treat such a Directive? Should one argue that using the guise of Article 100a, the proposed directive only masquerades as a measure designed to ensure the proper functioning of the internal market and that in reality it constitutes a sweeping arrogation of public health competence which the Community does not enjoy? The votes in the European Parliament testify to the delicacy of these issues. [9]

The view that we have taken in this part of our Study, and which we shall try and demonstrate, is that as drafted the Directive is, and ought to be, regarded as violative of Community competences. This Conclusion does not mean that restrictions on tobacco advertising are necessarily undesirable or legally prohibited. Our view is that a almost total ban -- which can only be justified as a measure designed to protect public health and which far exceeds anything that can reasonably be brought under Article 100a EEC or indeed any other basis of Community competence -- cannot be enacted by the Community and should remain in the province of the Member States to be decided by their governments and parliaments and subject to their constitutional limitations.

We should also emphasize that this view is not shared by all, which in turn explains some of our proposals regarding the resolution of disputes concerning competences.

We shall now present our train of reasoning in relation to this case-study.

1. Limits to Community Jurisdiction and Competences

The European Community enjoys very wide competences in a variety of economic and social fields. Moreover, the demarcation of competences has not been, and is not intended to be, static. As the Community has developed over the years its competences have grown: Partly through Treaty amendments, but also to a very large extent through an evolutive process which, with the sanction of the European Court of Justice, has matched Community powers with its objectives and dynamic growth. Yet, despite this impressive growth, the principle of limited competences, enshrined in the Treaties remains unchanged and must be preserved.

Article 3 EEC provided inter alia for "the approximation of the laws of Member States to the extent required for the proper functioning of the common market." (emphasis added)

Article 4 EEC provides inter alia that "Each institution shall act within the limits of powers conferred upon it by this Treaty."

Article 173 mentions, inter alia, as a grounds for declaring acts of the Council and the Commission [10] illegal "lack of competence".

In its early jurisprudence the Court stated:

[t]he Treaty rests on a derogation of sovereignty consented by the Member States to supranational jurisdiction for an object strictly determined. The legal principle at the basis of the Treaty is a principle of limited competence. The Community is a legal person of public law and to this effect it has the necessary legal capacity to exercise its functions but only those. (Joined Cases 7/56 & 3-7/57 Algera)

In its most celebrated case, Van Gend en Loos, the Court stated that the Community constitutes

a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit in limited fields. (Emphasis added)

It should also be noted that when the supreme jurisdictions of the Member States embraced the new Community legal order and accepted the principle of the Supremacy of Community law, they conditioned such acceptance on this very understanding of a Community of limited competences. Thus, for example, the Italian Constitutional Court in its famous Frontini decision accepting supremacy did so "on the basis of a precise criterion of division of jurisdiction." (emphasis added.) [11]

Safeguarding this principle of limited competences becomes all the more imperative since the entry into force of the Single European Act in 1987 which moved the Community in many of its spheres to decision making by majority vote. Whereas before 1987 Community legislation had to receive the de facto consent of all Member States, thus providing some guarantees to the division of competences, [12] such guarantee, as already mentioned, no longer exists.

Before explaining how the demarcation line of Community jurisdiction is drawn, and why in our view the draft directive as currently formulated transgress that line, we would like to set out, in extreme brevity, the cardinal reasons for insisting on the integrity of such a demarcation.

The Rule of Law

As the Court has stated the Community is a system based on the principle of the Rule of Law. The Community demands of both the Member States and individuals within the Community strict adherence to Community law. It also expects the courts in the Member States to enforce Community law against any violation. The Community cannot demand loyalty to the EC legal order if it itself disregards the rule of law. If the principle of limited competences were to be undermined by Community organs, not only will the moral force of the required commitment to Community law be undermined, but there would be a very real danger that one or more of the supreme jurisdictions of the Member States would refuse to give legal force to such a measure, precipitating the Community into a dangerous constitutional crisis. It might also provoke strong reactions from national parliaments.

Non-concentration of Power

The principle of limited jurisdiction and divided competences between Community and its Member States is not a technical legalistic rule. It embodies a profound aspect of democratic organization. It places a check on the tendency of all bodies exercising governmental power to try and draw as much power to themselves and is designed to prevent the excessive aggregation of power in one level of government. This principle becomes all the more compelling as the Community grows and the ability of individuals to influence Community governance diminishes. There would be somewhat less concern if the Community organs, especially Commission and Parliament, were to exercise a measure of self-restraint on the issue of jurisdictional limits. The tendency, instead, has been quite the opposite.

The Democracy Deficit

In the Community, this notion of non-aggregation of power is given a particularly sharp edge. Despite the increase in the powers of the European Parliament, it is still true that on most issues the Council of Ministers -- representing the executive branch of government -- retains the final dispositive say on Community legislation without decisive control of any directly elected parliamentary chamber. Transgressing the jurisdictional line compromises thus not only the principle of non-aggregation of power, but also more fatally transfers legislative competence to a context in which true parliamentary accountability is weak, at best indirect and at times altogether lacking.

Diversity

By its nature Community legislation tends in many cases to impose uniform norms, standards, and prescriptive behaviour throughout the Member States. In many occasions this is justified in the interests of greater economic efficiency and social mobility. However, precisely in the context of a Single Market and an Europe Without Frontiers the danger of obliterating the rich diversity of social behaviour and societal and cultural values becomes acute. Maintaining the jurisdictional limits of the Community is one way of acting against that danger. This, it should be noted in passing, is increasingly acknowledged even by the Commission in its more "relaxed" attitude to harmonization under its so called "New Approach to Harmonization".


European Parliament: March 1997