Written Answers. - EU Directives.

Jim O'Keeffe

Question:

275 Mr. J. O'Keeffe asked the Minister for Health and Children if he will give a full account of the circumstances relating to the preparation of the Public Health (Tobacco) Act 2002, in particular, the circumstances which led to the failure to give the necessary notification to the EU Commission before the Bill was enacted into law; and if he will make a statement on the matter. [4080/03]

EU Directives 98/34/EC and 98/48/EC, the transparency-technical standards directives, require draft technical regulations to be notified to the EU Commission and to other member states in advance of their adoption.

The procedure is intended to provide transparency and control with regard to technical regulations which impose binding legal rules regulating the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures. As national measures of this nature could create unjustified barriers to trade between member states, their notification in draft form and the subsequent evaluation of their content in the course of the procedure help to diminish this risk. The procedure was not followed at Bill stage with the 2002 Act and as a result, 14 of the 53 sections of the Act are affected. However, important aspects of the Act such as the establishment of the Office of Tobacco Control and the power to regulate smoking in the workplace remain in place.

As the Act is a public health measure it was considered that it was not notifiable to the Commission as a technical regulation. It was also considered that the requirement to introduce commencement orders in the case of the Act would allow for notification of the commencement order in draft form thereby meeting the requirements of the transparency directives. However, following correspondence and discussions with EU Commission officials on this matter and having obtained legal advice from the Attorney General it became clear that any attempt to commence the affected sections would result in considerable uncertainty as to the enforceability of sections in question.

Accordingly, I decided that the quickest and most appropriate way of resolving the issue was to repeal the affected sections and to re-introduce them by way of a new Bill which would then be notified under the transparency procedure and, on completion of this procedure, would be re-enacted.

The matter was further complicated by the fact that the Act was the subject of a legal challenge in the courts by the tobacco industry in three sets of proceedings. The court was advised of the problem with regard to some sections of the Act and of the attempts made through the Commission to resolve the issue. Each set of proceedings was discontinued. The problem can be remedied and it is my intention to proceed with amending legislation as soon as possible.
The Deputy may wish to note that I am now proceeding with a package of measures to control the smoking of tobacco in all workplaces and I have published draft regulations which will prohibit smoking in places of work from 1 January 2004.