Constitutionalizing Tobacco: The Ambivalence of European Federalism

Fernanda Nicola, American University, Washington College of Law


The Treaty Establishing the European Community announces in EC TREATY art. 5.1. the principle that the powers of the European Community are limited to those specifically conferred on it. However, experience and judicial interpretation have shown that, in practice, the allocation of power between the Community decision maker and Member States is neither clear nor immutable. In its Treaty Establishing a Constitution for Europe, the Community attempts to clarify the allocation of competences. Article III-278 of the Draft E.U. Constitution (Public Health Article) is a public health provision that expressly refers to the regulation of tobacco. To many, the Public Health Article reflects a shift toward European federalism by guaranteeing greater power to Member States over their national health regulations while limiting the power of the Community legislature. We argue that in reality, that this constitutionalization of tobacco does not guarantee Member States' autonomy. As long as the Community decision maker can standardize national tobacco laws whenever the functioning of the internal market is at stake, the Community will exercise some degree of control over States' national health standards. On the one hand, the Public Health Article can be used as a sword by the Community legislature, allowing intervention of a complementary and supportive nature. Community action may include monitoring, early warning of and combating serious cross-border threats to health. On the other hand, the Public Health Article may be used as a shield by States seeking to preserve their disparate public health standards. Because of this ambiguity, we argue that the Public Health provision remains open to interpretation and is susceptible to policy arguments made by either side. Consequently, the "constitutionalization" of tobacco fails to clarify the allocation of competences and provides little guidance in determining the substantive outcomes of pending disputes before the European Court of Justice.