Flynn may have coup against tobacco firms

The European legislative process is a tortuous route indeed

The European legislative process is a tortuous route indeed. The inputs of the three institutions - Commission, Council of Ministers and Parliament, mean there are as many bottlenecks as a Dublin commuter run, beyond which some legislation simply never emerges.

Next week, however, MEPs in Strasbourg are likely to put their seal of approval on two veteran proposed directives whose demise has long been forecast. Indeed one, a directive on the patenting of biotechnological inventions, is here in a second reincarnation having been thrown out by the Parliament in its original form in 1995. Of that fascinating ethical minefield, more another day.

The other, a phased extension of the TV ban on cigarette advertising to other media and to sponsorship, has finally emerged, substantially intact, from the Council of Ministers. Since 1990 it has largely languished in the drawer of the Commissioner for Health, one Padraig Flynn, unable to muster a qualified majority in its 15 sorties to ministers.

The election of a Labour government in Britain has broken the logjam. Despite the success of the Germans in nobbling the Spanish on the day of December's Health Council, a deal with the Greeks allowing point-of-sale advertising in special kiosks run by the handicapped, secured exactly the 62 votes the proposal required and sent it off to the Parliament for approval.

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Should MEPs agree it unamended, ministers will then give their formal approval and the Germans, the EU's largest manufacturers, will not get another crack at blocking the proposals although they have served notice of a possible court challenge.

It is an issue on which Flynn is a driven man - he has said publicly that if cigarettes were to come onto the market today as a new product, they would be banned as dangerous, and he has done battle with the Agriculture Commissioner, Franz Fischler, over the heavy subsidies paid to growers to produce tobacco that is substandard and has to be dumped on developing countries' markets.

Better to spend the money on rural development, Flynn argues.

The main provisions of the advertising directive are as follows:

an end to all sponsorship and advertising as from October 2006;

a three-year period to allow for transposition into national law (four years for the print media regulations), followed by a two-year phase-out of sponsorship and advertising;

exceptional provisions for a further three-year phase-out for existing sponsorship of "world events";

no new tobacco products can bear the trademark of another product once the directive is in force;

advertising allowed in trade publications, at point of sale, and the importation of third country publications to be subject to national regulation;

individual countries to be allowed to maintain tougher rules.

Robert Toet, of the Confederation of European Community Cigarette Manufacturers, is dismissive of Flynn's campaign as reflecting the "fact he has not been too successful as commissioner" and thinks this is an easy victory.

The tobacco lobby has pulled out all the stops - they have argued that the proposals threaten jobs in the newspaper and magazine industry, that some sports will not survive, that free speech is under attack, that smoking is a "lifestyle choice", that advertising is not about attracting new smokers but brand identification. . .

But their last and best line of defence is a challenge to the legal base of the Commission's proposal.

While the Maastricht Treaty specifically excludes EU legislation harmonising public health regulations, the Commission has justified its legal competence to propose the directive on the basis of its internal market powers.

The tobacco lobby insists that this is a misuse of these powers as there appears to be no real internal market harmonisation dimension to the issue and the majority of the advertising likely to be covered would never cross national boundaries.

A legal opinion obtained by Irish tobacco lobbyists argues that the Commission is under a legal obligation from previous rulings of the European Court of Justice to use a legal base as closely as possible connected with the real purpose of the legislation - in this case public health. It also argues that the directive is disproportionate in that, if genuinely a trade harmonisation measure, its purpose could be served by applying the rules only to media which functioned across national frontiers, effectively leaving 95 per cent of the media untouched.

Flor O'Mahony, of the Irish Tobacco Manufacturers Association, insists that the Commission is "acting with expedience rather than along the lines of what the treaty permits" and MEPs should heed the advice of their Legal Affairs Committee which regards the legal base of the directive as invalid. But the legal services of both the Commission and Parliament disagree and argue it is legitimate.

Next week the Parliament's environment committee will urge MEPs to approve the directive without amendment. This would be a blow to the richest lobby in this city and coup for Flynn, but all are likely to end up in court.

Patrick Smyth

Patrick Smyth

Patrick Smyth is former Europe editor of The Irish Times