Health and the Nation
Dr Lee Rotherham
Foreword by Tim Yeo MP, Shadow Secretary of
State for Public Services, Health and Education
Rome to Maastricht
Amsterdam and Nice
Creep and Consequence
From Working Group to Final Draft
Giscard's End Product
- Health and Safety
- The Food Chain
- The Charter of Fundamental Rights
- International Representation
Tim Yeo MP
Shadow Secretary of State for
Public Services, Health and Education
The last year has seen a remarkable reassessment of the European project.
The cold breath of realism is at last being felt. In all member states the
public is looking for a reduction in centralised bureaucracy and intervention,
and a return to a proper focus on making the Single Market work. The European
Commission must constantly be reminded of its economic mission. The EU must
deliver real benefits to businesses, consumers and the European economies.
In the field of public health, we need to redefine the role of the European
Commission. There are some overriding matters where co-ordination at the
European level is valuable: the dissemination of information on SARS, for
example, and the insistence on prompt action at all European borders. But
most health issues are best tackled at national level and, even more, locally,
- for example the setting of public health priorities, responses to substance
abuse, and the organisation of hospitals and local care.
We must beware of central solutions imposed by central managers. Here in
Britain, the NHS is already suffering from Labour's ethos of intervention,
command and control. The Conservative party is determined to break down this
overbearing structure, a culture where regulation and target-setting have
become substitutes for patient care.
I want to see a devolution of power with more autonomy for hospitals, more
freedom for clinicians, and more choice and control for patients. These will
be themes on which we will fight the next general election.
Dr Rotherham's study is a timely reminder that the principle of
subsidiarity must be fought for, if it is to be maintained. The success of our
National Health Service should be judged not by its adherence to some
theoretical model in Brussels or the Hague, but in the daily experience of
those it serves.
"Look at the number of areas in which EU jurisdiction
is specified: competition, trade, asylum and immigration, foreign affairs,
industrial policy, agriculture, fisheries, energy, transport, regional
government, consumer health, social and employment policy, justice and home
affairs. The list goes on and on. In fact, it is easier to make the point the
other way around by asking how many Whitehall ministries would be left fully
in control of their own affairs. The answer is one: the Department of
Comment Section, Daily Telegraph, 12 May 2003
"Your leading article was unduly optimistic."
Letter from the author, Daily Telegraph, 15 May 2003
On rational grounds, health provision is a clear-cut national issue. Its
functioning is primarily the result of government policy and regional, if not
community, supply. After all, no factories exist to churn out lines of
finished products, to be loaded onto cargo ships and exported. Its operation
is local; its concerns human.
Yet this has not stopped the steady seepage of European Union activity into
the fabric of the national health systems of member states.
The latest media story carries the tell-tale marks of naked policy
ambition. In mid-September, newspapers carried reports that David Byrne, the
EU Commissioner for Health, was putting together plans for a blanket ban on
smoking in bars, cafes and restaurants. Privately, Commission officials were
conceding that the EU presently had questionable legal authority to carry out
this measure, but that they foresaw an opportunity to bend the rules by using
the Health and Safety clause - in like manner to that by which John Major's 48
hour week opt-out had been circumvented. Such treaty circumspection was
completely justified, explained the Commissioner, because smoking played its
part in the deaths of 500,000 Europeans a year, and was too important an issue
to be left in the hands of national governments.1
Health provision remains a controversial area of Community involvement,
touching as it does on such issues as market forces in the environment of the
socially vulnerable, and the right to set taxation rates.
While the Treaty of Rome made direct reference to health provisions, these
were entirely in the context of reservations that could be exercised by member
states. Grounds such as public health could be invoked to supersede provisions
in the Treaty. Thus, Article 36 could be invoked by a country to suspend an
aspect of the Treaty over imports and exports, where health protection was an
issue; Articles 48 and 135 covered health risks involving the free movement of
workers; whereas Article 56 permitted restrictions over the free movement of
The shift in emphasis first appeared with the Maastricht Treaties. Earlier
clauses were replaced with a direct Communities interest in areas of shared
health concern. The new text reads as follows:
- The Community shall contribute towards ensuring a high level of human
health protection by encouraging co-operation 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
- Member States shall, in liaison with the Commission, co-ordinate 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 co-ordination.
- The Community and the Member States shall foster co-operation with third
countries and the competent international organizations in the sphere of
- In order to contribute to the achievement of the objectives referred to in
this Article, the Council:
- acting in accordance with the procedure referred to in
Article 189b, after consulting the Economic and Social Committee and the
Committee of the Regions, shall adopt incentive measures, excluding any
harmonization of the laws and regulations of the Member States;
- acting by a qualified majority on a proposal from the
Commission, shall adopt recommendations.
Thus, at a stroke, the Commission adopted a budgetary interest; a potential
propaganda line (information and education); a right of policy initiation; an
international role; and a policy area run by QMV. On the plus side for member
states, harmonisation of laws and regulations was specifically excluded, and
health involvement was limited to "major health scourges", including drugs,
though this would be liable to interpretation.
In the Amsterdam Treaty key amendments were made to the old Article 129,
now renumbered Article 152 TEC. The Community's "contribution" was
strengthened to oblige that it be "ensured". Its role in "complementing"
national activity was underlined, in place of simply "encouraging". In the
wake of the French blood scandals of the late Mitterand years, organ and
transfusion safety was explicitly covered, and as a guarantee of competence in
the next BSE-style incident, explicit reference was added to veterinary and
plant measures connected with the protection of public health.2
Even now, though, a clause specifically noted that, "Community action in
the field of public health shall fully respect the responsibilities of the
Member States for the organisation and delivery of health services and medical
No doubt the health scares of the late nineties played their part in
encouraging a clearer definition of where the EU stood. Amsterdam boosted the
role of the EU in limited public health areas, established a clear intention
for serious legislation to come, and shifted the Commission's role into a
legislative motor to "complement" national legislation. The scope of
initiative arising from this expression was open to interpretation, to say the
least. Furthermore, harmonisation of Member States' laws and regulations was
now permitted (under paragraph 4) with respect to safety in transplants and
transfusions, and in the broad food safety role.
The key development that arose from the Nice Treaty came in a different
section. Under Article137(1)k, provisions concerning health and safety at work
now fell under qualified majority. We will return to this later.
Articles 129 (Maastricht) and 152 (Nice) subsequently became used as the
basis for Council decisions, establishing cooperative programmes. The actions
based on these legal bases have become increasingly questionable. Those of
1996 included action plans to combat cancer and AIDS. 1997, however, saw the
adoption of a programme on the prevention of drug dependence at Community
level (which, though permitted by the treaties, was of questionable worth).
1999 saw a programme of Community action on injury prevention, and one on
pollution-related diseases, together with a Council resolution "promoting
mental health". 2001 saw a non-binding Council statement "on the drinking of
alcohol by young people, in particular children and adolescents".3
However, this treaty creep was not confined to actions initiated by the
Commission. The European Court of Justice has played a key and controversial
part in developing legislation and extending the remit of the Communities to
intervene in health matters. The problem lay in two sections of the treaties.
Provisions relating to the internal market and to the freedom of services has
been prayed in aid by lawyers, arguing that their clients had the right to
choose where in the Single Market they could get their health provisions from
if the national health services were not speedy enough to supply it.
This arose from the cases of Decker, Kohll, and Smits-Peerbooms.4 Combined, these ruled that the organisation and
delivery of health and medical care products or services were regulated by
Single Market rules, even though health provisions were covered by Article
152(5)TEC. The Court, in short, concluded that, while Community law did not
prejudice Member States' powers to organise their health services, Member
States did have an obligation to follow Community law when they were setting
their national provisions. Where rules covered reimbursement - ie where the
patient could be refused treatment overseas, or required prior consent from
the authorities - such could constitute an obstacle to trade. These obstacles,
the Court concluded, could be permitted for imperative reasons (such as
prohibitive costs, or to permit equal general access to care), providing the
restrictions were proportionate. Thus in the Decker case it judged that the
patient could purchase spectacles without prior notification in another
country, because he would have been reimbursed in his own state anyway. In
Smits-Peerbooms on the other hand, it recognised that the patient did have to
check first that his health insurers had contractual dealings with the
hospital, before obtaining medical treatment abroad.
The Commission subsequently explained the Court's interpretation thus:
"In such situations, the European Union has to intervene
from the point of view of the internal market in sectors which, in the Member
States, are covered by 'non-commercial' areas of power (e.g. the
powers of the ministry of education or public health). Without such
intervention, the fundamental freedoms of the internal market would be
devoid of their substance. In other words, the Community action in
question has a transversal nature and may have an impact in the most diverse
areas - and even areas for which the Union has been allocated only
complementary powers - provided that obstacles inhibiting the internal market
freedoms are identified."5
In plain English, the Court placed Single Market provisions over the rights
of states to manage their own health provisions. It recognised as a caveat
that in some off-the-shelf prescriptions the patient would have to ask first
(health insurance schemes might preclude action, and the type of treatment
itself might be seen as questionable). But the ECJ had crucially ruled that
patients in the NHS could proactively obtain their treatment abroad.
TEC Article 99(2) was also an issue for the British Government. That
article permits for QMV in the context of coordinating broad brush economic
policy amongst EU member states. But ageing populations and their healthcare
requirements have a direct impact on the national purse. Thus the Commission
found it had an indirect line into British Government policy on how it funded
Not surprisingly, all these areas featured on the British Government's list
of tidy-up points when the European Convention began.
The key to understanding the latest evolution of EU health policy lies in
the debates that took place in the Convention on the Future of Europe. More
specifically, in that working group which dealt with "Complementary
In the weary jargon of Brussels, a "complementary competence" is a policy
area where actions taken at EU level are meant to "add value" to those
undertaken by the member states. The working group dealt specifically with
policy areas in which both national governments and the Commission had the
right to initiate legislation. This assumed, of course, that the Commission
had not got there first - a procedure known as the "occupied field". In
effect, member states retain their sovereignty except insofar as their remit
has been squeezed by action at Community level.
Public health was just one of the competences that fell into this category
- along with employment, customs cooperation, education, vocational training,
culture, consumer protection, Trans-European Networks, industry, and Research
and Development cooperation. The working group was mandated to examine these
and determine whether they could better be handled differently. Theoretically,
this included restoring the competence fully to national and intergovernmental
control, but it could also mean further communitarisation.
Of the working group's members, perhaps only a minority of five could be
classified as actively Eurosceptic. This meant that restoring competences to
national control was not realistically going to feature on the agenda.
Nevertheless, the working group's President - former EU Commissioner Henrik
Christophersen - had the advantage of being Danish, and therefore tempered
some of the group's work with the knowledge of widespread grassroots distrust
of EU policy creep.
An early suggestion made was to include the concept of the "center of
gravity" in the new Constitution.6 This
permitted legislation that crossed article basis, providing that the
legislators could argue that the 'middle weight' of the proposal fell in a
particular area. It was intended as an armchair means of determining whether
the Union had competence, or whether unanimity covered an area, through
Cartesian logic rather than treaty law.
Another solution proffered was the "Christophersen Clause", which
underscored requirements for the Union to respect the national identity of its
Member States. In the case of health, the inference was that the NHS was a
particularity of Britain, and would be covered in much the same way as the
clause could be called upon to protect double decker buses, flavoured crisps,
or milk chocolate made from vegetable rather than animal fat. Problems arose
when some Convention members tried to define the limits of the clause. Would
it include language, national citizenship, military service, educational
systems, personal taxation systems, or even abortion? The clause quagmired:
elements were lifted directly into the relevant sections. But the
Christophersen basis did eventually survive into the final text as a diluted
Article I.5: Relations between the Union and the Member
- The Union shall respect the national identities of the Member States,
inherent in their fundamental structures, political and constitutional,
inclusive of regional and local self-government. It shall respect their
essential State functions, including those for ensuring the territorial
integrity of the State, and for maintaining law and order and safeguarding
Meanwhile, a debate was going on within the working group on the limits of
the Union's interests in Health. What could justifiably be better achieved at
Joachim Wuermeling, a moderate Eurosceptic German MEP, set out one stall as
part of a general submission.7 The EU's
role lay in preventative health work through the exchange of information and
best practice. To him, harmonization would hamper Member States, and even the
setting of centralized EU standards would be more of a hindrance than a help,
because it would remove the competitive element between national systems.
An alternative strategy came from fellow MEP Helle Thorning-Schmidt (better
known as the Kinnocks' daughter-in-law). Her pet project was the "open method
of coordination" - "a method of improving multi-level governance in federal
systems or in more loosely coupled polities."8 This is a more Socialist model, that first
gained impetus at the Feira summit under the Portuguese Presidency, where
broad objectives and guidelines would be produced, and reports submitted on a
regular basis. This carries the "double benefit" of obliging governments to do
nothing while being able to issue press releases suggesting action. In
reality, of course, problems may consequently follow with the courts and the
justiciability of pledges made.
Other delegates meanwhile made more of a bid for the Health articles to be
tightened up. The Greek delegate, for instance, called for the combating of
narcotics to be given more prominence by being moved into a new article in its
The result was that no group held a clear majority on how the Health
clauses needed modifying. The Final Report of the Working Group, submitted to
Plenary, did not include a draft text for a new Health clause. Instead, it
made certain recommendations (many of which covered complementary competences
as a whole).
These focused in part on confirming the legal status of actions already
undertaken through such articles, a number of which had seemingly been illegal
under the tortuous budgetary law of the old treaties. 9 The report endorsed "low intensity" measures,
where there was a "common Union and Member States interest" to do so. It also
recommended that public health (along with Trans-European Networks, or "TENS")
be classified as areas which "in toto" fell into the supporting measure
bracket. In other words, it provided a very rare instance of an attempt in the
Convention to retreat from Community competence, in favour of the member
states.10 As the Final Report put it,
"The group felt that such a modification would be useful".
The Convention produced its final copy in June and July of 2003. Public
Health has been listed as a joint competence under (new numbering) Articles
I.13 and I.16, but in a split manner. The EU has shared competence in "common
safety concerns in public health matters", and can additionally exercise
non-harmonising complementary powers for the "protection and improvement of
If there is a health crisis, then the EU and national governments must
handle it together. EU activity now has primacy where the two coincide.
Otherwise, where the Commission can identify an area with a health aspect,
then it can start programmes and manage a blue-flag scheme. This latter is
spelled out in the new Health Article:
- A high level of human health protection shall be ensured in the definition
and implementation of all the Union's policies and activities.
Action by the Union, which shall complement national policies, shall be
directed towards improving public health, preventing human 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.
The Union shall complement the Member States' action in reducing drugs-related
health damage, including information and prevention.
- The Union shall encourage cooperation between the Member States in the
areas referred to in this Article and, if necessary, lend support to their
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
- The Union and the Member States shall foster cooperation with third
countries and the competent international organisations in the sphere of
- European laws or framework laws shall contribute to the achievement of the
objectives referred to in this Article by establishing the following measures
in order to meet common safety concerns:
(a) measures setting high standards of quality and safety of organs and
substances of human origin, blood and blood derivatives; these measures shall
not prevent any Member State from maintaining or introducing more stringent
(b) measures in the veterinary and phytosanitary fields which have as their
direct objective the protection of public health; European laws or framework
laws shall be adopted after consultation of the Committee of the Regions and
the Economic and Social Committee.
- European laws or framework laws may also establish incentive measures
designed to protect and improve human health and to combat the major
cross-border health scourges, excluding any harmonisation of the laws and
regulations of the Member States. It shall be adopted after consultation of
the Committee of the Regions and the Economic and Social Committee.
- For the purposes set out in this Article, the Council of Ministers, on a
proposal from the Commission, may also adopt recommendations.
- Union action in the field of public health shall fully respect the
responsibilities of the Member States for the organisation and delivery of
health services and medical care. In particular, measures referred to in
paragraph 4(a) shall not affect national provisions on the donation or medical
use of organs and blood.
Several key features stand out. Firstly, consider what has not
happened. The Commission's Health expenditure in supporting measures has not
been dropped, even though it had technically been illegal. It has now been
sanctioned, and this can be used to further the profile of the Community in
the field - indeed, the existence of a dedicated Health Commissioner and civil
servants demands it.
Secondly, no attempt has been made to create a Single Market opt-out for
health. The "Centre of Gravity" principle was kept out of the Constitution,
but it remains in European case law, and has not been superseded by this text.
Therefore, NHS provision can continue to be challenged through the European
Thirdly, despite attempts in the Working Group, no sunset clause for
legislation is included: so much for Gordon Brown's latest "wish list" of what
he wants from the European Constitution. And as we have seen, while the
Working Group's conclusions had called for all Health issues to be classified
as supporting measures "in toto", "common safety concerns" have been placed in
the shared competence bracket. Consequently, the EU will play a major part in
determining overall Health policy; and in areas where it legislates, national
governments subsequently cannot.
As we shall see shortly, there are also serious implications that arise for
British participation in such bodies as the World Health Organisation
Were this article the limit of the problem, diplomats might resolve to grin
and bear it, trusting in Providence and a good lawyer at Strasbourg. But with
an empowered Commission now set to push its old remit of ensuring a high level
of health protection, other key elements in the Constitution come into play to
create a serious legal threat.
1. Health and Safety
Maastricht saw the nebulous emergence of Health and Safety. Article 3 TEC,
together with Articles 129 (general Health) and 130 (Environment) provided for
the mechanism that would be used to circumscribe John Major's veto on the
Social Chapter. But with the voting into office of the New Labour
administration, a possible veto on developing the area was averted, and the
wording "Health and Safety" crept directly into the treaties in its own
The Constitution confirms, rather than revolutionises, the trend. For
instance, it brings across the old Article 95, a huge legal loophole. Under
Article III-65.3, 'H&S' is treated as a distinct field and is given equal
prominence, requiring the EU to provide a "high level of protection, taking
account in particular of any new development based on scientific facts". While
Article III-104 identifies working conditions as a "complementary competence",
the implication from III-65 is that all other H&S issues which can be (at
least nominally) tied into the Single Market will be treated as a Community
If Commissioner Byrne is looking for a means to implement his smoking ban,
he may already have a legal basis to force it on states by Qualified Majority
under this clause. The assumption must be that this has not been attempted,
because a QMV quorum cannot currently be guaranteed.
The Commission certainly has developed a recent track record in this area.
For instance, on the basis of science contested by the industry, the
Commission undertook to ban phthalates from plastic, on the contentious
grounds that in quantities it was poisonous, and that it could be found in
childrens' toys, which a child might chew.11 Regardless of the science of the case, EU
legislators have demonstrated an increasing tendency to deploy the
Precautionary Principle (it is in the treaties). If there is a chance that
something is the case, then 'something must be done'. The danger is that
remedial measures are grossly disproportionate to the risk, which may not even
exist as the science upon which the risk is adjudged may be so cutting-edge as
to be uncorroborated.
2. The Food Chain
The Constitution does not appear to make sweeping changes here, but it does
confirm the current situation: health will feature prominently in legislation
for both Consumer Protection, and the Environment. Again, where either can be
seen to have an impact on the Single Market, (through III-65) related Health
measures would fall under QMV as a justifiable grounds for Community
3. The Charter of Fundamental
The importance of the Community competence is boosted with the
incorporation of the Charter. As is known, the original version was a
stand-alone text. It was not incorporated into the Treaties proper, as the
then-Europe Minister, Keith Vaz, colourfully pointed out in the context of
the Beano. But even before the text had been agreed, the European
Parliament had begun to reference it in support of its legislation, to be
followed in due course by the ECJ referring to its provisions when reaching
The Labour Government had early indicated its intent not to see the Charter
incorporated this time round either. However, as the working group dedicated
to its revision soon revealed an integrationist majority, the Government
delegate was forced to take a U-turn. The Charter would be incorporated after
all, but guarantees would be demanded to ensure that its impact would be
These came in two forms. Firstly, extra "horizontal clauses" would be added
at the end, to apply laterally to each fundamental right, so that it would
only apply to EU institutions, or when EU legislation was being implemented.
The Charter was expressly forbidden from extending competences (Article
II-51). The problem here is that so much of national law is actually European
in origin, that the distinction is meaningless. The second defence was to
allow for the explanatory notes that accompanied each 'Right' to have legal
force equal to the wording of the 'Right' itself. The flaw in this plan is
that these explanatory statements, while they do indeed limit the scope of
application, have not actually been included in the draft Constitution. Their
legal standing, therefore, appears to be secondary, and so the Court of
Justice will have a right to reinterpret.
Consequently, the Constitution will incorporate a Charter of Fundamental
Rights with limited protection from judicial review. Further, where a 'Right'
is given and a related competence can be identified in the remainder of the
Constitution, a plaintiff could logically bring a test case to identify an
area where his or her perceived rights were not being upheld through an actual
lack of legislation. The Commission could potentially be obliged to produce
legislation with the Charter and the courts as a motor.
One of the 'Rights' (Article II-35) deals directly with health care, but
while it refers to "national laws and practices" in the supply side, it
directly refers to obligations arising from "the definition and implementation
of all Union policies and activities" as well. The ambiguity of primacy is
The Charter as a result is a muddle. Consider the following potential court
- Article II-1: human dignity must be protected. Could this affect priority
of treatment on the NHS?
- Article II-2: right to life. Is there no cap on expenditure on the
treatment of patients?
- Article II-3: integrity of the person. Does this limit private health care
activity where profit can be made in respect to the body, for instance in
blood banks? What is the limit of the ban in human cloning? What is the limit
on "eugenic practises", given the possibility of identifying genetic
disorders? In the Whittaker case, the family went to the United States to have
a child to treat a genetic disorder in their son. Would this be criminalized?
- Article II-4: degrading treatment. Can a hospital be sued for keeping
patients on a trolley? (Well, we can hope so.)
- Article II-9: right to found a family. Does this require all applications
for sperm bank use to be authorised?
- Article II-15: right to engage in work. While this is unlikely to
legitimise the activities of quack doctors and phoney medical schools, it
might mean that professional qualifications will have to be recognized
throughout the EU, regardless of linguistic ability and differing levels of
- Article II-21: non-discrimination. Are there any situations where
treatment could be seen as discriminatory towards one category of patients? Is
there a predisposition, for instance, for smoking amongst members of one
social category, meaning that general policy towards treatment of smokers
could be interpreted as discriminatory?
- Article II-31: fair and just working conditions. In the light of the end
of the derogation on junior doctors' working hour limits, how is this going to
affect the NHS workforce and the Health budget?
- Article II-32: prohibition of child labour. Is Health and Safety going to
end newspaper rounds for children?
- Articles II-37, II-38: environmental and consumer protection. This
directly obliges the Union to guarantee citizens "a high level of protection"
in these areas.
What flows from this convolution only time will tell. But increasingly,
national courts will be called upon to find solutions for people who feel that
government agencies or their elected representatives have failed to deliver.
At the very least, the courts will fill up over a period of legal
interpretation, while the Commission and European Parliament will be motivated
A number of delegates argued for a defined EU competence to deal with
large-scale health crises, such as the SARS epidemic had threatened to become.
It was quietly pointed out that no further extension of the treaties was
actually required. Delegates were naturally unaware that a number of the
standing committees and organisations set up to cover Health policy could
cover such eventualities. For instance, there was already a Committee on the
action plan for rare diseases; another for epidemiological surveillance and
control of communicable diseases; another for the action plan for the
prevention of AIDS and certain other communicable diseases; another for health
monitoring; one for health promotion, information, education and training; and
One final question remains. Who will represent British medicine abroad? Under
Article III-179.3, both the Union and Member States are meant to foster
cooperation internationally. The terms are to be negotiated between the
parties, as set out in III-129.4.
However, under Article I-12, we find the familiar ratchet at
2. The Union shall have exclusive competence for the
conclusion of an international agreement when its conclusion is provided for
in a legislative act of the Union, is necessary to enable it to exercise its
internal competence, or affects an internal Union act.
Ostensibly, this is already the case in practise, because following an ECJ
ruling on TENs it was judged that EU delegates would represent all EU members
in international negotiations where it had exclusive competence. In fact, the
reality seems to have become a confused mish mash with everyone turning up
even where the Commission is the key player - witness Cancun.
But now, what had been an ECJ interpretation becomes Treaty practice. In
any area of Health (or anything else for that matter) where the EU has
legislated in the past, it falls to the EU to represent national governments
at international organisations.
This would cover UN organisations like the WHO, UNICEF, and UNFPA (the
Population Fund). It would include other bodies like the working groups of the
Council of Europe. In short, it covers both the remit and the fancy of all
present and future EU working groups.
The EU Constitution fails to redress the imbalance in where legislative
competence lies. It actually boosts the role of the Union in public health
matters (Articles I.13 and I.16), and confirms Court judgments reached to date
that contentiously interpreted previous treaties. Further, with the inclusion
of the Charter of Fundamental Rights, the ECJ will now play a dominant role in
the drive for more social legislation at the European level, and a revision of
established NHS working practice. This comes at a time of policy ambition for
the European Commission.
Meanwhile, a turf war is set to take place on who will represent the Union
with its increasing responsibilities on the international stage, between the
new permanent President of the Council of Ministers, and the Health
Commissioner, supported by the Foreign Affairs spokesman. Under the
Constitutional Treaty text, the Commission delegate will win. He will have a
designated civil service to help him in his task.13
The track record of the European institutions indicates that these are not
idle fears. The controversies regarding GM crops, and the banning of certain
vitamin supplements on health grounds and in the name of harmonization, are
both widely known. But how will the public react once what up to now had been
a series of recommendations and action plans in other sensitive fields becomes
enforced legislation, enacted at such a distance from the electorate?
Consider what subjects could feature in a proactive legislative programme:
fluoridisation of drinking water; cannabis; drug prescriptions; sexual habits;
abortion; psychiatric prisons; hunger strikes; personal living conditions;
lifestyle choices, such as diet or exercise; hospital work; forced
vaccination; private health provision; vehicle designs; airline thrombosis;
alcohol consumption; pilots and driving licences; or patient prioritisation
and waiting lists. So many aspects of our lives fall under "common safety
concerns" or "protection and improvement of human health" that they are truly
blanket provisions, under which legislation could be brought in where Member
States otherwise would hold a veto.
On top of that, there is the matter of the shared economic interest. All EU
countries under Maastricht are required to consider their respective economic
management as a matter of common concern. This is now boosted by the Protocol
on the Euro Group, which has a new, permanent President to facilitate the
"ever-closer coordination of economic policies within the euro area".
Patently, this will cover the big spending issues, such as pensions, wars, and
health. Certainly, if the United Kingdom joins the Euro, the NHS will be under
tight scrutiny and its budget and organisation subject to increasing
interference. Even with Britain outside of the Euro, it is difficult to see
how its members will resist repeated swipes at states which have been so
'anti-communautaire' as to escape unpopular constraints - particularly as the
opt out is not intended to be permanent.14
The NHS needs reform. But it needs a solid structural overhaul and not
policy change by legal subterfuge.
If some European states have a better Health service, it is not because of
diktats from above: it is because of real diversity and the lessons of best
practice learnt on the ground. The last thing the NHS needs is to see these
alternative models homogenised in the name of standardisation - the socialist
leg-irons of reform.
- Daily Telegraph of 19 September 2003.
- Article 118 TEC (renumbered in the Giscard
Constitution III-107) further covers the "prevention of occupational accidents
and diseases under Social Policy").
- See Working Document 1 of Working Group V for a fuller
- Decker - 28 April 1998, case C-120/95; Kohll - 28
April 1998, case C-158/96; Smits-Peerbooms - 12 July 2001, case C-157/99.
- Working Document 7 of WG V.
- The spelling was tellingly American.
- Working Document 15 of WG V.
- Working Document 12 of WG V.
- It would appear that administrative costs of the old
complementary competences were not necessarily allowed for! In order to be
legal, the funding needed to be approved first by a "basic act", and this had
not happened. See Case C-106/96, 12 May 1998. The negotiators at Nice clearly
overlooked the problem.
- See page 5 of the Working Group Final Report, CONV
- Much of the debate centred on whether all children's
toys should be included, or just those actually designed to be put in the
mouth (like teething rings). A complicating factor was that alternative
plasticisers were as, if not more, toxic.
- Logically it would be superseded by the following
article, where businesses have to be run according to national practice. In
any event, there is a conflict.
- The Council President would not have the benefit of
such a dedicated 'EU foreign office', though it has been inferred he will
'sneak in' a small personal secretariat. The Health Commissioner will have at
his disposal both his own directorate-general, plus the new elite foreign
- The wording is absolutely clear on this point:
"pending the accession of all Member States of the Union to the Euro area".