In preparation for IGC Focal points meeting on 4 May 2004, the Irish Presidency has published a new draft (CIG 73/04) of the Constitutional Treaty based on Document CIG 60/03 ADD1, incorporating changes to the Naples text of December 2003.
However, the Presidency emphasized that this new document is not an official proposal and that issues related to Qualified Majority Voting (QMV) still need to be worked out. But no new concerns could be tabled by Member States.
The next IGC meetings (on ministerial level) are scheduled for May 17 an 18 (and, if needed, for May 24 and June 14).
Negotiations must be concluded by the Dublin summit on 17 June 2004.
There will be no extra IGC meetings of Foreign Ministers or Heads of States, the outstanding issues will mostly be solved by focal point meetings of civil servants.
In order to find out at which state discussions are you might want to contact your national Permanent Representatives or ministries.
EPHA analysis
Key changes in this new draft document include reference to the possibility for EU law on monitoring or combating serious threats to health and a specific citation for public health legislation on alcohol and tobacco. However, once again this EU law is not allowed to harmonise Member State laws. The new draft re-affirms the national right to manage medical care and the resources allocated to them. This should be seen in context with a new paragraph on Article III-21, Social Security which specifically states that a Member State may challenge EU law if it threatens the overall financial balance of the system. In this situation, if the Council accepts the argument it can require the Commission to submit a new document and annul the previous law. This important new paragraph links with a new phrase in the article on public services (SGI, Art III-6) which states that EU laws must not prejudice Member States responsibilities to provide, to commission and to fund such services.
The European political agenda has featured Member State discussions about the financial sustainability of healthcare systems (following ECJ judgements on patient mobility) and pension schemes because of demographic changes in Europe. The changes to the draft Constitutional Treaty reflect national concerns.
For health advocates a number of key questions remain:
Against the backdrop of the ongoing struggle to develop binding EU health legislation on tobacco, the insistence that EU laws on tobacco and alcohol cannot be used to harmonise national legislation seems counterproductive.
How will non-communicable diseases be tackled? These are the major health burden in Europe and are linked to core lifestyle issues. The current Treaty’s legislative capacity is weak in this respect, so will Art III-179.4 which identifies as ’serious threats to health’ as common safety concerns allow EU legislation?
The Article on Services of General Interest (SGI) states that the EU and Member States will ensure that public services operate on the basis of principles and conditions — but does not mention the key issues of solidarity, equity and universal access. Instead the conditions listed are economic and financial. This also does not exclude public services from competition and procurement rules, an issue that is critical to allow social, ethical or environmental criteria to be taken into account for public tenders. Although the Article notes that an EU framework law will define the conditions and principles, the essential question is whether this law will be based on the Green paper on SGI or the draft Directive on Services, which have different philosophical approaches to health services.
Changes to the text are marked in bold.
Social Clause, Article III-2a, (Annex 27, p 72)
There are no changes to the post-Naples text:
In defining and implementing the policies and actions referred to in this Part, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
Social Security, Article III-21, (Annex 28, p 74)
New paragraph
2. Where a Member of the Council considers that a draft European framework law referred to in paragraph 1 would infringe the fundamental principles of its social security system or would significantly affect the overall financial balance of that system, it may request that the matter be referred to the European Council. In that case, the procedure referred to in Article III−302 shall be suspended. After discussion, the European Council may:
(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III−302, or
(b) request the Commission to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
Public health, Article III-179, (Annex 35, p 89)
Some additions and deletions to the post-Naples text:
ART III-179.1 (b)
monitoring, early warning and combating serious threats to health when they may affect more than one Member State. (Previous draft mentioned accidental or intentional threats to health.)
ART III-179.2
The Union shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action. It shall in particular, encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.
ART III-179.4 (covers common safety concerns for EU legislation)
(c) measures setting high standards of quality and safety for health products and devices for medical use.
(d) measures concerning monitoring, early warning and combating serious threats to health when they affect more than one Member State. (This is a new bullet point).
ART III-179.5
European laws or framework laws may also establish incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, as well as measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol. These European laws or framework laws cannot provide for any harmonisation of the laws and regulations of the Member States.
ART III-179.7
Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. Measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.
EPHA note: the phrase in the field of public health has been deleted from the sentence ’Union action...’
The explanation from the Presidency for the changes to the text:
The Presidency proposes that the post-Naples text be further amended. The revised text includes a reference in paragraph 4 to an additional provision allowing for measures concerning monitoring, early warning and combating serious threats to health when they affect more than one member State. Paragraph 5 contains a reference to measures relating to tobacco and the abuse of alcohol. In paragraph 7 it is proposed that the reference to public health be deleted.
Services of General Interest (Annex 42, p 108)
Art III-6
Without prejudice to Articles I-5, III-55, III-56 and III-136, and given the place occupied by services of general economic interest as services to which all in the Union attribute value as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Constitution, shall take care that such services operate on the basis of principles and conditions, in particular economic and financial, which enable them to fulfil their missions. European laws shall define these principles and conditions without prejudice to the competence of Member States, in accordance with the Constitution, to provide, to commission and to fund such services.
