The #Tobacco directive: how the European Commission side-lined the European Parliament

It’s not often that the European Parliament’s Environment, Public Health and Food Safety (ENVI) committee makes the news. Yet the upcoming February 20^th meeting is slated to be a tense showdown between advocates for more European transparency and those trying to keep the European Commission’s opaque regulatory processes in place. On the ordre du jour of the committee, the most important item will be discussing the hastily produced set of standards that the Berlyamont put forward late last year discussing the implementation of track and trace (T&T) for tobacco products in Europe.

French MEP Younes Omarjee and some of his colleagues are not happy with the acts the Commission is asking the Parliament to rubber stamp and are threatening to veto. They criticize the fact that key aspects of the T&T system are being entrusted to the tobacco industry, the very actor responsible for a considerable part of the illicit tobacco trade the system is supposed to tackle in the first place. Omarjee claims that, if adopted, the legislation would not be compliant with a World Health Organization (WHO) treaty signed by the EU in 2013 – the Protocol to Eliminate Illicit Trade in Tobacco Products.

Omarjee is right: the Commission’s acts do grant tobacco producers a suspicious amount of influence, marking a dangerous final result for the Tobacco Products Directive (TPD) mandate to implement a T&T system in Europe. The acts the EP will discuss on February 20^th were also adopted by the EC without taking into consideration the views of multiple stakeholders, with everyone from public health NGOs to MEPs publishing strong criticisms of the texts during the consultation process. Their insistence on the compulsory nature of WHO provisions, especially those requiring that the Member States control of the traceability system, fell by the wayside. But understanding why the EP should veto the act means understanding the flawed process that gave birth to the TPD in the first place.

The trials and tribulations of the TPD

The TPD, drafted under the second Barroso Commission between 2011 and 2014, was tainted by one of the EU’s biggest corruption scandals and the ensuing resignation of Health Commissioner John Dalli. The Maltese functionary was accused of requesting a €50 million bribe to lift a ban on a tobacco product – snus – that had been prohibited for decades as part of a directive that aimed to further tighten tobacco regulation.

Strangely, following Dalli’s dismissal, the final version of the TPD was considerably watered down, much to the advantage of the tobacco industry. Plain packaging was not adopted and the prohibition of menthol cigarettes or packages aimed at women and kids was postponed. Egregiously, the final version also shelved the amendments requested by the EP to include the WHO Protocol to eliminate illicit trade of tobacco products in the TPD text.

Despite numerous instances where the tobacco industry was caught red handed in financing the parallel cigarette trade, the final version of the TPD circumvented WHO regulations that bar input from tobacco industry in the tracking process. Not only did the TPD entrust the tobacco industry with key responsibilities, it also conferred substantial regulating competencies (the implementing acts) to the EC, leaving only those of a subsidiary nature (delegated acts) to the EP.

Too little power for the EP

Indeed, the TPD mandates that the standards and the security system of the T&T system (articles 15-11 and 16-2) be regulated by implementing acts, while the elements of data storage (article 15-12) are regulated by delegated ones. The key difference is that the EP only has real power over delegated acts, where it can decide to veto and even annul the EC’s delegation of powers. By contrast, the EP only has consultative (read, non-binding) powers over implementing acts.

Indeed, articles 290 and 291 of the Lisbon Treaty distinguish between delegated acts and implementing ones. This tertiary legislation distinction was set forth to ensure the Parliament would have a say in the adoption of tertiary legislation that had quasi-legislative nature, so as to ensure the powers of the EC would be checked by the EP.

In this context, passing the final form of the T&T system will only add to the controversies dogging the EC’s notoriously opaque procedures after a year marked by intense corporate lobbying on topics including glyphosate, endocrine disruptors, neonicotinoids, or electrical fishing practices. It would also further confirm that the subsequent reforms meant to increase the EP’s legitimacy in the eyes of Europeans, an important step in fixing the Union’s democratic deficit, were just plain old window-dressing.

Through a veto, the EP would send a strong signal:

Firstly, that it is necessary to abide by the Treaty’s rules and respect the established separation of powers between the Parliament as co-legislator representing the people, and the Commission representing the opacity of the technocratic lobbied institution.

Secondly, that the tobacco industry should not be entrusted with key roles in the traceability of its products, considering its responsibility in tobacco products’ parallel trade, and mandatory international law.

This wouldn’t even be the first time the EP and the EC locked horns over tobacco regulations. MEPs prevented the EC from renewing the Philip Morris Cooperation Agreement in 2016, against the will of then vice-President Kristalina Georgieva. They instead followed through with a landslide vote of 600 MEPs on 7 June 2016 to ratify the WHO Protocol to eliminate illicit trade in tobacco products. It remains to be seen whether the members of the ENVI commission will decide to do so again on February 20^th.

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