The compatibility of Ireland’s Public Health (Alcohol) Bill with EU law


EU Law Analysis: The compatibility of Ireland’s Public Health (Alcohol) Bill with EU law

The compatibility of Ireland’s Public Health (Alcohol) Bill with EU law

Dr. Ollie
Bartlett
, Maynooth University
This month the
Irish Public
Health (Alcohol) Bill
completed its passage through the houses of the Oireachtas,
after two years and nine months of debate. The Bill introduces five main
interventions: minimum pricing of alcoholic beverages; stricter labelling of
alcoholic beverages; restrictions on alcohol advertising; the structural
separation of alcoholic beverages from other products in retail outlets; and
restrictions on the sale and supply of alcoholic beverages. Its purpose is to
combat alcohol related harm in Ireland, which has reached
worryingly high levels
.
Health Minister
Simon Harris has been obliged to defend various aspects of the Bill in the
Irish press, and has described the eventual passage of the legislation as ‘groundbreaking’.
This short contribution will focus on assertions that certain
parts of the legislation are not compatible with European Union law
. Such
assertions (usually made by those with vested interests in the alcohol trade)
attempt to deploy a vision of the EU internal market as a guarantor of
commercial freedoms, in order to intimidate national governments into watering
down public health protections. This contribution will address the inaccuracy
of these assertions in relation to the Irish Public Health (Alcohol) Bill. In
doing so it will identify how governments might also misinterpret European
public health law and policy, and how this can lead to regulatory failure.
Opponents could
argue, and have argued, that any substantive aspect of the Bill will be liable
to unduly restrict trade in alcoholic beverages, and should therefore be seen
as an unjustified breach of Article
34 TFEU
, which prohibits measures having equivalent effect to a
quantitative restriction upon trade in goods. However, Article
36 TFEU
(which provides for exceptions to Article 34), together with
consistent CJEU case law (for example, Aragonesa,
 Bacardi
France
, Ahokainen
and Leppik
, Rosengren
and Scotch
Whisky Association
) indicate that, provided an alcohol control measure is
proportionate, it can be adopted despite the fact that it places a restriction
on trade.
All five
interventions in the Bill can be justified as proportionate. Minimum pricing rules
can be compatible with EU law as the Scotch
Whisky
judgement suggested in the context of Scottish minimum unit
pricing (MUP). Context is key for MUP, and Irish MUP will not automatically be
legal as a result of this decision, but under the terms of the decision, and
given the extensive and clear impact
assessment
conducted by the Irish government, as well as the already very
high tax rates on alcohol in Ireland, it should not be difficult to demonstrate
that MUP is an appropriate and necessary measure in this jurisdiction too.
There was a last
minute and intense debate
on the inclusion of cancer warnings on alcoholic beverage labels. This proposal
has perhaps been the most harshly criticised, as trade
restrictive, stigmatising for Irish products and detrimental to the operation
of the internal market
. Mandatory health warnings on alcoholic beverages
have not been directly addressed by the CJEU. Having said this, labelling and
information provision have regularly been viewed by the CJEU as a proportionate
form of public health intervention (for example, Van
der Veldt
, Commission
v Germany
, Neptune
Distribution
), and indeed the CJEU has stated that ‘labelling
is one of the means that least restricts the free movement of products within
the [EU]’
. Furthermore, it can be argued that given the remarks
made by the CJEU on the carcinogenic nature of tobacco in the Philip Morris case
, and the strong
evidence on the carcinogenic nature of alcohol
(the third leading risk
factor for disease and death in Europe behind smoking and high blood pressure),
it is not unreasonable that the decision to warn of the risk of alcohol related
cancer on warning labels, using a method of intervention that does
not impair the substance of intellectual property or business rights
, would
be seen as proportionate. Cancer warning labels might stretch the limits of
what is necessary to achieve the objectives of public health protection, but
they arguably do not – given the existence of evidence on positive
effects
and Member
States’ commitment at WHO level to consider stronger alcohol labelling
requirements
– go beyond these limits.
Those that
criticise the Public Health (Alcohol) Bill wrongly assume that the internal
market requires Member States to prioritise the rights and interests of
business, and to deal with social issues in a way that best suits the business
community. This is not the case – the internal market guarantees free movement,
but does not guarantee businesses a trump card to play when they feel their
interests are being infringed. Far from preventing the Member States from
protecting their populations, EU law protects the Member States’ right and
responsibility to do so in a proportionate manner – even if this would lead to
a certain amount of disruption to the status quo of transnational trade.  
EU law does not
require Ireland to ensure that its policy choices are consistent with the
policy choices in other Member States, and does not require that, once a
barrier to trade has been justified, it is not implemented on account of
possible trade distorting effects. The Irish government should bear in mind
that internal market law permits each Member State to protect its own population
in whatever way it sees fit, irrespective of choices made by other Member
States, as long the barriers to trade it erects are proportionate. Simon
Harris’ recent softening of his previous stance, through statements that
Ireland cannot wait ‘forever’ to implement MUP
, is therefore to be welcomed.
In order for
this to ever happen, Member States must commit to regulating the alcohol
industry in their own territories. The conferral of competence upon the EU to
regulate the internal market depends on the existence of barriers to trade,
which can only exist if Member States have enacted sufficiently diverse
regulations. Currently, regulation of online alcohol advertising is consistent
across Member States in its virtual non-existence. The existence of at least
some variation in national regulation would certainly put greater pressure on
the Commission to adopt common rules, and would add some weight to the Member
States’ political
call for a European Union alcohol strategy
. Thus, the Irish government’s
position that Member States should wait for the EU to act has unfortunately led
to a regulatory failure on an important public health issue.
In summary, the
Public Health (Alcohol) Bill is a bold piece of legislation that seeks to act
on the substantial evidence base on alcohol related harm in Ireland. It is
within the discretion of the Irish government to adopt, and contains
interventions which make justified restrictions to free movement. Assertions
that parts of it are not compliant with EU law fail to take account of the fact
that EU internal market law preserves the right of the Member States to protect
their populations as much as it protects the freedoms of traders. Misinterpretations
of this prerogative, or of the reality of EU level public health policy, can
potentially lead to inaction and regulatory failure. The Irish government has taken
an important step towards reducing the burden of alcohol related harm in
Europe, and other Member State governments should be encouraged to follow.



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