February 12, 2018
Naive questions about a file where every actor seems to be acting in reverse
Being a recognised lobbyist, professor at the College of Europe, author and blogger, hardly a day goes by without a journalist or student asking me to contribute to an article or thesis. I have always responded positively – except for tobacco. This is not due to personal hostility, but to a conviction that the world of tobacco is a world apart and you cannot really talk about it unless you are part of it. Here I must make an exception to my own rule because this particular file is troubling.
The context: conflict between the World Health Organisation (WHO) and the Commission’s DG SANTE
In 2012, the WHO adopted a Protocol to Eliminate Illicit Trade in Tobacco Products which totally excludes tobacco manufacturers from participating in tracking and tracing operations. In the words of Vera Luiza da Costa e Silva, head of the Secretariat of the Framework Convention on Tobacco Control (FCTC), “Is it wise to put a fox in charge of a hen house?” In early 2014, the European Union adopted the Tobacco Products Directive which sets a lower standard than the WHO regarding traceability systems, requiring that the business in charge of storing the data be “independent” from manufacturers. However, the delegated act put forward under this provision does not guarantee such independence. The act is currently under scrutiny at the European Parliament which has the right to veto it.
This more lenient approach from DG SANTE is being contested by numerous MEPs who, despite having adopted the TPD, expressed their reservations about the tobacco sector on 9 March 2016 when they rejected by a large majority (432 against 246) the co-operation agreement between the European Commission (which supported the agreement strongly) and Philip Morris International.
A question of timing for some, a question of principle for others…
The first question is: which legal instrument takes primacy over the other? Under international law, it is the WHO Protocol, which the EU has already signed. But in order to enter into force, the Protocol needs to be ratified by 40 states. So far, only 35 have ratified it. Why is it taking so long? The 40th ratification is expected to come around June 2018. Why does DG SANTE not wait until then? And why is it not adhering to the more restrictive provisions of the Protocol, given that according to an analysis by Professor Christian Mestre, former Dean of the Law faculty at Strasbourg University, the EU is under a pre-convention obligation to respect an international agreement even pending the latter’s entry into force.
As usual DG SANTE is not communicating publicly about this, but those who are expressing their views make two arguments: for technical reasons the implementation of the tracking and tracing system cannot be delayed, and any revision of the EU legislation (TPD) would risk opening Pandora’s Box. Unconvinced, MEP Younous Omarjee has submitted a motion to veto the delegated act.
Alliances in reverse: pro-tobacco and anti-tobacco in favour of DG SANTE’s more permissive system!
It cannot be said that Mr Omarjee’s initiative has made many headlines. Despite having voted overwhelmingly against the draft Philip Morris agreement, MEPs appear cautious on this issue. Even the most anti-tobacco among them seem resigned to the adoption of the delegated act. Their motives are diverse, even obscure. The fear of re-opening the TPD on a technical point seems a cause of much opposition. Is it so difficult to achieve, within a few months, a revision of Articles 15 and 16 of the TPD, a Directive that is considered vital for public health? In any case, the EU must ensure it is in conformity with the WHO; all the more reason to do the revision quickly.
As for anti-tobacco groups, figures as indisputable as Luk Joossens and Florence Berteletti are defending the delegated act. These two people having dedicated their lives to fighting tobacco, why did they take this position? There is a need for an urgent public debate on the topic, given that a veto on the Omarjee motion by the ENVI Committee is expected on 20 February.
DG SANTE: the most opaque body on the EU planet
Having led the lobbying campaign in 2011-2012 for the authorisation of the medicine Orphacol, I experienced directly the opacity of this fortress. In that case, DG SANTE went as far as convening a comitology committee on a public holiday to prevent Member States from gathering a qualified majority against its proposal. Two times we had to go to the Court of Justice to get the medicine authorised. No explanation or apology was ever given on this file.
DG SANTE should be taking part in this latest debate and quashing rumours regarding a potential link between the granting of subsidies to various associations and the current timetable. In my previous life as Secretary-General of COPA-COGECA I was able to see how the Commission’s awarding of subsidies to stakeholders could have perverse effects. In the same way that tobacco tracking and tracing should be subject to public authority control, the granting of subsidies to associations should not be the Commission’s job.Daniel Gueguen