Smoking In The Workplace – The European Prospective

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Perhaps the most talked about legislative initiatives in recent times is the Public Health (Tobacco) Bill 2003. Its proposed effect has been described as draconian by the Vintner’s Association and welcomed by the Anti-Smoking Lobby. Section 15 of the Bill, which amends Section 47 of the Public Health Tobacco Act 2002, allows the Minister of Health:

(1) For the purposes of reducing the risk to and protecting the health of persons, the Minister may, by regulations, prohibit or restrict the smoking of tobacco products in-

All or part of a licensed premises, registered club, or place of work…

‘The exemptions granted to date by the Minister will see an estimated 80,000 workers not enjoying the protection of the ban’1. Despite the public and media debate over the economic effect on licensed premises, tourism and enforcement of the ban, one issue which has not been talked about is the effect that Ireland’s membership of the European Union has had on this piece of legislation. It is the purpose of this essay to deal with this.

“Tobacco use is the most significant avoidable source of disease and premature mortality. In the European Union alone, over 500,000 deaths per year are caused by tobacco consumption while globally 4 million die annually from tobacco. Smoking leads to significant death and disease from cancer, cardiovascular disease and respiratory disease in adults as well as severe health effects in children exposed to tobacco smoke. The death toll caused by tobacco consumption can and must be avoided.”2

In introduction the ban on smoking in the workplace the ‘the Government is seen as attempting to put its house in order in preparation for its EU Presidency in 2004. Workers rights seem to be topping the agenda in many areas’3. Since 1986, the Europe against Cancer Program has supported projects that inform the public about the dangers of smoking. The Program also seeks to improve the health of its citizens by reducing the number of cases of cancer and other smoking related diseases4.

Article 152 (ex Article 129) of the EC Treaty provides, inter alia, that:

A high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities.

Community action, which shall complement national policies, shall be directed towards improving public health, preventing human illness and diseases, and obviating sources of danger to human health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education.

This Article has been the most important Article used in the fight against smoking related diseases. To date three important European legislative directives have been issued to deal with the problems of smoking:

1. Council Directive 89/552/EEC of 3rd October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Council Directive 97/36/EC which prohibits television advertising and online shopping for cigarettes and other tobacco products.

2. Directive 2001/37/EC of the European Parliament and of the Council of 5th June 2001 on the approximation of the laws, regulations and administrative provisions of the member states concerning the manufacture, presentation and sale of tobacco products. This directive, known as the ‘tobacco products directive’ has replaced earlier legislation and aims to harmonise national law in several key areas, namely, the labelling of tobacco products, dealing with additives and addictive substances and sets a maximum level of tar (10 mg. Per cigarette) nicotine (1mg. Per cigarette) and carbon monoxide (10 mg. Per cigarette) manufactured in the EU from the 1st January 2004 and for export from 1st January 2007.

3. Directive 2003/33/EC of the European Parliament and of the Council of 26th May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the tobacco advertising and sponsorship of tobacco products. The aim of this directive is a ban on tobacco advertising is the media as well as on the Internet. Further, it bans sponsorship of events that try to advertise tobacco with cross-border effects.

As it can be seen the legislative bodies of the European Union have been very active in the fight against tobacco consumption and the associated problems such as lung cancer. Yet none of these directives deal directly with the problems of smoking in the workplace, passive smoking and Environmental Tobacco Smoke (‘ETS’). The Public Health (Tobacco) Bill 2003 does, however, with the prohibition of smoking in the workplace. In introducing this Bill the question which could be asked is whether the Minister has gone too far in promoting the objectives laid down by Article 152 of the EC Treaty, or whether this Bill is a recognition of one of the weaknesses of Ireland’s membership of the European Community.

Article 249 of the EC Treaty is the most important provision of the Treaty regarding Community legislation. It provides that:

In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

A decision shall be binding in its entirety upon those to whom it is addressed.

Recommendations and opinions shall have no binding force.

Article 29.4.5� of the Constitution and the European Communities Act 1972 has given effect in general terms to the Treaties of the European Community and Union. As such the three directives mentioned have binding effect on Ireland, and were to the large part enacted in the Public Health (Tobacco) Act 2002 and Public Health (Tobacco) Bill 2003 – ‘but shall leave to the national authorities the choice of form and methods’.

What is significant is the last part of Article 249 of the EC Treaty. It states that recommendations and opinion shall have no binding force. The most vocal European Union initiatives have been issued in the form of recommendations, opinions or resolutions of which five are prominent. However, by being issued as recommendations and resolutions, their effect have been weakened in that the have little or not effect in law in the Member States. These five policy framework documents are:

1. Council Recommendation 2003/54/EC of 2nd December 2002 on the prevention of smoking and on initiatives to improve tobacco control of which it calls for the implement legislation and/or other effective measures in accordance with national practices and conditions at the appropriate governmental or non-governmental level that provide protection from exposure to environmental tobacco smoke in indoor workplaces, enclosed public places, and public transport.

2. Council conclusions of 18th November 1999 on combating tobacco consumption.

3. Council Resolution of 26th November 1996 on the reduction of smoking in the European Community.

4. Conclusions of the Council and the Ministers for Health, meeting within the Council of 27th May 1993 on the response to the Resolution on banning smoking in places open to the public

5. Resolution of the Council and the Ministers for Health of the member states, meeting within the Council of 18 July 1989 on banning smoking in places open to the public.

Viewed in this light it can be seen the Public Health (Tobacco) Bill 2003 is in keeping with the aims and the spirit of the European Community. Moreover, it can be seen as further promoting the aim of Article 137. Article 137 of the EC Treaty provides, inter alia, that:

The Community shall support and complement the activities of the Member States in the following fields:

Improvement in particular of the working environment to protect workers’ health and safety

Clearly a law, which has the effect of attempting the deal with a problem that causes 500,000 deaths in the European Union per annum and is within the stated aims of one of the European Union Treaty Articles (Article 137EC) should be welcomed. However, the opposition, mainly by the Vintner’s Association has been large. In spite of evidence to the contrary – ‘According to figures from the University College London, non-smoking bar-workers take in up to ten times as much Environmental Tobacco Smoke (‘ETS’) as non-smokers in other professions. This puts them at a risk some 20-30% higher of suffering form “smoking associated” illnesses such as lung cancer. Mandate has put forwards evidence suggesting that the smoking ban will save the lives of 150 Irish bar staff annually’5 – the Vintner’s Association argue that the resulting legislation will result in bar and restaurant closure.

Two problems which have not been addressed in the public debate is firstly discriminatory effect of the exemptions granted (as was stated earlier an estimated 80,000 workers will not be covered by this ban) and secondly the pre-emptive effect of this law on possible legislation from Europe.

Dealing with the pre-emptive effect of this legislation, it seems clear that preventing smoking is a clear objective of the European Community. The harmonization of laws in this area such as Directive 89/552/EEC, Directive 2001/37/EC and Directive 2003/33/EC as well as the non-binding resolutions and recommendations shows a aim at Community level to deal with the problems of Environmental Tobacco Smoke.

Take the case of Pubblico Ministero v. Tullio Ratti6. Here Mr Ratti’s Italian company had begun packaging and labelling its containers of solvents in accordance with two Council directives regulating the area. These directives had not yet been implemented in Italy, and the requirements of the Italian legislation on the matter were more stringent than those under the directives, providing penalties for those who failed to comply. Criminal proceedings were instituted against Ratti under the domestic legislation, and he relied in his defence on the direct effect of Community directives. The ECJ made two related finding. First, it found that a State could not, after the period for the implementation of the directive had passed, rely on domestic legislation to penalise a person who has complied with the directive.7 Secondly, and more importantly, the ECJ held ‘a Member State may not introduce into its national legislation conditions which are more restrictive than those laid down in directive in question, or which are even more detailed or in any event different.’8

Craig9 argued that the harmonisation of EC law requires not only that States, which have not implemented directives, should do so. It further stipulated that the means of implementation should, with the minimum of variation, be in substance the same.

Thus the question arises whether (assuming that the European Community introduces a directive concerning smoking in the workplace) by pre-emptive such, what effect will the Minister of Health decision have on legal certainty? While, if it is more restrictive that the Irish legislation no doubt further legislation would have to be introduced. Although, if less restrictive, it would seem following the ruling in Pubblico Ministero v. Tullio Ratti10 the Irish legislation would be incompatible with European Law, following the principle of supremacy of Community Law:

“Indeed any recognition that national legislative measures which encroach upon the field within which the Community exercises it legislative power or which are otherwise incompatible with the provisions of Community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations unconditionally and irrevocably by Member States pursuant to the Treaty and would thus imperil the very foundations of the Community…”11

However, the legislation may be defendable on the public policy derogation i.e. public health, or more likely the legislation would be writing along the same lines as Council Directive of 12th June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC) which provides – ‘This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work’. The effect of this possible pre-emptive legislation remains to be seen.

Concerning the discriminatory effect, the following poses an interesting argument. The free movement of persons is one of the four fundamental freedoms of the EC Treaty. Articles 39, 43 to 48 and 49 to 55 of the EC Treaty deal with the free movement of employed persons and the free movement of the self-employed. While it may seem strange to equate smoking in the workplace with free movement of workers – if you take as a corollary of the free movement of workers that the expectation which this raises is that workers will be treated equally – the picture becomes complete.

Take for example Council Directive of 12th June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC). The stated aim for this directive is provided in Article 1 – ‘the object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work’. Its scope is established in Article 2 – ‘This directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc)’. From this is can be seen that such a directive is intended to affect all workers whether public or private and aims to ensure equal treatment of those workers under this directive thereby promoting one of the general principle of European law, that of non-discrimination.

The proposed effect of Section 15 of the Public Health (Tobacco) Bill 2003 will have the result of leaving 80,000 employees or workers in the country outside the effect of the prohibition on smoking in the workplace. While not falling within the classic definition of discrimination as provided by Article 2(1) of the Charter of Fundamental Rights:

“Any discrimination based on any ground such as sex, race, colour, ethic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual prohibition shall be prohibited”

80,000 workers will in law and in fact be treated differently than other workers by virtue of their place of work. Can there be a more obvious example of a discriminatory law in Ireland today? While the Minister would argue that these workers are exempt from the prohibition on smoking in the workplace, the proposed aim of Section 15 is the ‘purposes of reducing the risk to and protecting the health of persons’. Why are 80,000 workers excluded?

As Marianne Bogue argues ‘concerted practices of harmonisation are more desirable that individualistic legislation but until the Union has taken sufficient steps to promote workers’ health rights it is a moral imperative on the Irish Government to see the enactment and enforcement of this anti-smoking Bill’12. While I agree with this statement, such legislation is useless unless it protects all members of the workforce.

Furthermore, as she points out ‘until the Union has taken sufficient steps to promote workers’ health rights’ – one right which the Union has granted all its citizens should not be overlooked. The Treaty on European Union introduced the status of citizenship of the European Union (Article 17 to 22 of the EC Treaty). Article 17 of the EC Treaty provides:

Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby

The introduction of citizenship ‘raises expectations that European citizens will enjoy equality, at least, before Community law’13. This read in concert with Article 40.1 of the Irish Constitution which provides:

All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactment have due regard to differences of capacity, physical and moral, and of social function

Raises the problem, how can such a proposed law be in keeping with the spirits and aims of Ireland’s membership of the European Community and also within the spirit and aims of the Irish constitution.


The Public Health (Tobacco) Bill is a welcomed addition to the legislation aimed at protected the lives and the health of workers in this country. The most contentious point in the public debate regarding the prohibition of smoking in the workplace is its application to bars and restaurants. A compromise of sorts was posited; allowing smoking in designated areas which would be serviced by high levels of ventilation removing ETS, creating a safe area for workers. The ventilation compromise was an acceptable abrogation of the Tobacco Control Act 1995 in Finland, but scientific research has since established the futility of such safety measures.

In September 2003 the EU Joint Research Centre published a Report on their findings establishing that high ventilation levels could not clear the harmful chemical compounds left by smoking. At best all ventilation could achieve was cosmetic in nature: the removal of the smell of tobacco. Team leader, Dr Kotzia, said the study led to only one conclusion: a mandamus upon the State to ban smoking in public places, in pubs and bars14.

The Irish Presidency of the European Union will best be remembered, aside from the possible conclusion of the European Constitution, as the time when Ireland took the lead and banned smoking it the workplace, unconditionality. By removing the exemption for 80,000 workers currently in place, the country will uphold the spirit and aims of both the Irish constitution and the European Union and place this small country as a forerunner in designing community policy, the effect of which will protect the health and welfare of Community citizens as a whole.

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