Updated with the changes announced at the June 2007 Council Summit and the agreement reached by Member States on 19 October 2007.
This article compares the legal provisions on public health of the defunct Constitutional treaty with the draft Reform treaty. The draft article on public health under negotiations is attached.
Background information on the 2007 IGC
More than two years after the French and Dutch ‘no’ votes to the Constitutional treaty that was formally signed on 29 October 2004, EU leaders gathered in Brussels on 21-22 June 2007 to re-launch the debate on the future of Europe.
At the June 2007 summit, EU leaders agreed to abandon the Constitutional Treaty and to draft a new Reform Treaty that will amend the existing treaties [1].
The conclusions of the 2007 Council summit outline the mandate of an Intergovernmental Conference (IGC), which will draw up a new Treaty on institutional reform by the end of 2007. If ratified, this treaty could enter into force in June 2009, ahead of the next European Parliament elections. For health NGOs, there is a risk that EU leaders will abandon the key positive elements related to health that were introduced in the former Constitutional Treaty.
For now, the main change announced by the Council Conclusions concerns the article on public health and especially the issue of cross-border threats to health (Article III-278 point (d) of the defunct Constitutional Treaty).
At an informal summit on 18 and 19 October 2007, the heads of State and Government agreed on the final version of the Reform Treaty to be signed off on 13 December. The changes previously announced to the article on public health have been kept in the final version of the draft reform treaty.
The former Constitutional treaty : key elements related to health
Although the former Constitutional Treaty did not focus on public health as a means of improving the health of the population, it did introduce some new and positive elements in the way that health is addressed by the EU :
For the first time the well-being of people living in Europe became an aim of the EU (article I-3 : the Union’s objectives).
Access to preventive health care and treatment was recognised as fundamentally right (article II-95).
The European Commission was granted a stronger mandate to fight health threats, including tobacco and alcohol. It was also given a stronger role in the cooperation between Member States. According to the health mandate of the ICG, this role will be weakened.
Article I-III Objectives of the Union
The Union’s aim is to promote peace, its values, and the well-being of its peoples. This is important because well-being is a very inclusive approach to health and covers physical, mental, and social health issues.
Charter of Fundamental Rights of the Union
Article II-95 of the Treaty stated : "Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices.
A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities."
For the first time, the Charter of Fundamental Rights has been integrated into the Treaty and therefore was supposed to become legally binding after ratification by all Member States. This article guaranteed "right of access" for all individuals but only on the basis of national legislation and practice.
The second paragraph repeated the opening sentence of Article III-278 on public health (see below).
In June 2007, the United Kingdom was granted an "opt-out" clause, meaning that the Charter will not apply to the UK. Poland and Ireland were also considering opting-out.
In October 2007, Member States agreed to replace the full text of the Charter of Fundamental Rights by a short cross-reference with the same legal value. Poland has finally joined the UK in asking for an opt-out of the Charter, while Ireland has backed away from this option.
Article on Public Health
This was the first article in the part of the Treaty listed as ’Areas where the Union may take coordinating, complementary, or supporting action,’ which normally means that the EU cannot pass legislation that would require Member States to harmonise their own laws. However, paragraph 4 of the Article did enable the EU to legislate in some new key areas by a derogation from the early Treaty articles that list public health as a non-legislative policy sector. Paragraph 5 also stated that the EU could pass binding legal acts.
How did Article III-278 differ from Art 152 of the Treaty of Amsterdam ?
Paragraph 1 mentioned ’physical and mental health’ rather than just ’human health.’ This was more coherent with the WHO definition of health.
Paragraph 1 (b) covered ’serious cross-border threats to health,’ which could include communicable diseases such as flu and SARS as well as bio-terrorism.
Paragraph 2 established a number of non legislative processes for health policy [2]. This was similar but not identical to the Open Method of Coordination (OMC), which has been used in the past few years to address social exclusion and long-term care for the elderly.
Paragraph 4 basically adapted the wording to the new nomenclature of EU legislation. Sub-paragraph (c) lists medicinal products and devices for medical use as an area of legislation on health issues. Of course, the EU has legislated on these issues before but on the legal basis of the internal market and led by the Commission’s Directorate General for Enterprise.
More importantly, paragraph (d) meant that the EU could legislate to establish measures concerning monitoring, early warning of, and combat against serious cross-border threats to health.
Paragraph 5 reinforced the idea of EU legislation to establish measures to combat ’cross-border health scourges’ and specifically mentioned measures to protect ’public health regarding tobacco and the abuse of alcohol.’
Paragraph 6 recognised the ability of the Council to issue recommendations on public health.
Paragraph 7 stated that, apart from the definition of their health policy and the organisation and delivery of health services and medical care, Member States were also responsible for the management of health services and medical care and the allocation of the resources assigned to them.
At the June Summit, EU leaders relegated measures on cross-border threats to health from the paragraph enabling the EU to adopt legal binding acts to a paragraph whereby the EU will only be able to adopt incentive measures. This results from an attempt to block the possibility for the EU to harmonise the legislative and regulatory provisions of Member States.
It is worth noting that this change has been included in the draft Reform Treaty, which will not be disclosed until the starting date of the IGC (23 July 2007) and is now being circulated among the EU Ministers for Foreign Affairs.
Social clause
Article III-117 says that the Union would take into account several requirements, including human health, when implementing policies and actions.
This ’horizontal clause’ was designed to re-affirm certain principles for all policies. The inclusion of ’human health’ is important and relevant for environment and health issues.
Participatory democracy
The main innovation in this area was the inclusion of a right of citizens’ initiative.
Article I-47 stipulated that a petition with at least one million signatures obtained from a number of Member States may be sent to the Commission inviting it to take a legislative initiative, provided that the latter is compatible with the Constitution and, in particular, with the Charter of Fundamental Rights.
This citizens’ initiative did not affect the right of initiative of the Commission, which is itself free to decide whether or not to respond to the request to present a proposal.
The same article also required the institutions to maintain an open, transparent, and regular dialogue with representative associations and civil society and to carry out broad consultations with the parties concerned.
EPHA’s mission aims to strengthen the dialogue between the EU institutions, citizens, and NGOs in support of healthy public policies and therefore would welcome this article.
But this article has not just been valued positively by civil society. European businesses have declared to be happy with this initiative, which also will take into account the expectations and needs of business.
The draft reform treaty agreed in October 2007 does not mention the principle of participatory society as such. However, the content of former article I-47 has been kept and transferred under article 8b.
"Social implications and possibilities of the constitutional treaty", by Jo Shaw
