EN Official Journal of the European Union C 296/4

COUNCIL RECOMMENDATION

of 30 November 2009

on smoke-free environments

2009/C 296/02

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular the second subparagraph of Article 152(4) thereof,

Having regard to the proposal from the Commission,

After consulting the European Parliament (1),

Having regard to the opinion of the European Economic and Social Committee (2),

Whereas:

(1) Article 152 of the Treaty stipulates that 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.

(2) According to Article 137 of the Treaty, the Community shall support and complement the activities of the Member States, inter alia, in the field of improvement in particular of the working environment to protect workers’ health and safety.

(3) Exposure to environmental tobacco smoke (ETS) — also referred to as second-hand tobacco smoke — is a widespread source of mortality, morbidity and disability in the European Union.

(4) According to conservative estimates, 7 300 adults including 2 800 non-smokers died as a result of ETS exposure at their workplace in the European Union in 2002. A further 72 000 adult deaths, including those of 16 400 non-smokers, were linked to ETS exposure at home.

(5) Exposure to second-hand tobacco smoke is particularly dangerous to children and adolescents and could increase the likelihood of their taking up smoking.

(6) ETS has been classified as a known human carcinogen by the World Health Organization (WHO) International Agency for Research on Cancer and as an occupational carcinogen by Finland and Germany.

(7) All people have the right to a high level of health protection and should be protected from exposure to tobacco smoke.

(8) Voluntary policies at national level have proved ineffective in reducing exposure to tobacco smoke. Member States’ binding legislation, properly enforced and monitored is an effective means of adequately protecting people from the health risks of second-hand tobacco smoke.

(9) Legislation on smoke-free environments is most effective when it is backed up by measures such as awareness-raising campaigns, support for cessation of tobacco use, strong health warnings on tobacco product packaging and other regulation on tobacco products.

(10) Civil society has an important role in building support for and ensuring compliance with legislation on smoke-free environments.

(11) Smoke-free policies should have adequate instruments to implement the multi-sectorial approach to tobacco control.

(12) There is a need for strengthened cooperation between Member States to facilitate the exchange of information and best practice and develop a standardised EU monitoring system.

(13) The 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 (3) invited the Member States to take measures banning smoking in certain enclosed premises open to the public, and to extend the ban on smoking to all forms of public transport.

(14) Council Recommendation 2003/54/EC of 2 December 2002 on the prevention of smoking and on initiatives to improve tobacco control (4) recommended that Member States implement legislation and/or other effective measures that provide protection from exposure to ETS in indoor workplaces, enclosed public places, and public transport.

(15) Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (5), while not explicitly referring to tobacco smoke, covers all risks to the health and safety of workers (6).

(16) In its Environment and Health Action Plan (2004-2010) (7), the Commission has undertaken to ‘develop work on improving indoor air quality’, in particular by ‘encouraging the restriction of smoking in all workplaces by exploring both legal mechanisms and health promotion initiatives at both European and Member State level’.

(17) The consultation initiated by the Commission's Green Paper ‘Towards a Europe free from tobacco smoke: policy options at EU level’ (8) (the ‘Green Paper’) has revealed strong support both for comprehensive smoke-free policies in all enclosed workplaces and public places and for further EU action to promote smoke-free environments throughout the Member States.

(18) The Employment, Social Policy, Health and Consumer Affairs Council held an exchange of views on policy options at EU level on tobacco smoke-free environments on 30 and 31 May 2007. It welcomed the Green Paper and stressed the need for Community guidance to further promote tobacco-smoke free environments at EU level, as well as Community support for and coordination of national measures.

(19) The European Parliament's resolution of 24 October 2007 on the Green Paper called on the Member States to introduce comprehensive smoke-free laws within two years and invited the Commission to table a relevant legislative proposal by 2011 in the event of unsatisfactory progress. It also called on the Commission to propose an amendment to the current legislative framework in order to classify ETS as a carcinogen and oblige employers to ensure that the workplace is smoke-free.

(20) Article 8 of the WHO Framework Convention on Tobacco Control (FCTC), signed in June 2003 by all WHO members, and so far ratified by 167 Parties, including the Community and 26 of its Member States, creates a legal obligation for its Parties to adopt and implement in areas of existing national jurisdiction as determined by national law and to actively promote, at other jurisdictional levels, the adoption and implementation of effective measures to protect people from exposure to second-hand tobacco smoke in all indoor workplaces, public transport and indoor public places and, as appropriate, other public places.

(21) The Second Conference of the Parties to FCTC in July 2007 adopted guidelines on protection from exposure to tobacco smoke (9) to assist Parties in meeting their obligations under Article 8 of the Convention. Each Party should strive to implement the guidelines within five years of the Convention's entry into force for that Party.

(22) Article 14 of the WHO Framework Convention creates a legal obligation for its Parties to develop and disseminate appropriate, comprehensive and integrated guidelines based on scientific evidence and best practices and to take effective measures to promote the cessation of tobacco use and adequate treatment for tobacco dependence. The Third Conference of the Parties to the WHO Framework Convention decided to establish a working group for the elaboration of guidelines for implementation of that Article.

(23) The European Strategy on Tobacco Control adopted by the WHO Regional Committee for Europe in September 2002 recommended that Member States ensure the citizens’ right to a smoke-free environment by, inter alia, making public places, workplaces and public transport smoke-free, banning smoking outdoors in all educational institutions for minors, in all places of healthcare delivery and at public events, as well as classifying ETS as a carcinogen.

(24) This Recommendation is without prejudice to the Community legislation laying down minimum requirements for the safety and health protection of workers adopted under Article 137 of the Treaty, to Directive 2001/37/EC of the European Parliament and of the Council of 5 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 (10) and to Commission Decision 2003/641/EC of 5 September 2003 on the use of colour photographs or other illustrations as health warnings on tobacco packages (11),

HEREBY RECOMMENDS THAT THE MEMBER STATES:

1. provide effective protection from exposure to tobacco smoke in indoor workplaces, indoor public places, public transport and, as appropriate, other public places as stipulated by Article 8 of the WHO Framework Convention on Tobacco Control (FCTC) and based on the annexed guidelines on protection from exposure to tobacco smoke adopted by the Second Conference of the Parties to FCTC, within five years of the FCTC’s entry into force for that Member State, or at the latest within three years following the adoption of this Recommendation;

2. develop and/or strengthen strategies and measures to reduce exposure to second-hand tobacco smoke of children and adolescents;

3. complement smoke-free policies with supporting measures, which may include: (a) taking effective measures to promote cessation of tobacco use and adequate treatment for tobacco dependence, taking into account national circumstances and priorities as outlined in Article 14 of the FCTC; and (b) introducing combined warnings, as defined by Article 2(4) of Commission Decision 2003/641/EC of 5 September 2003 on the use of colour photographs or other illustrations as health warnings on tobacco packages (12), and information on services supporting the cessation of tobacco use on the packages of smoking tobacco products in order to better inform consumers about the health risks of tobacco use and exposure to tobacco smoke, encourage cessation of tobacco use and deter initiation;

4. develop, implement, periodically update and review comprehensive multi-sectoral tobacco control strategies, plans or programmes which address, inter alia, the issue of protection from tobacco smoke in all places accessible to the general public or places of collective use, regardless of ownership or right to access;

5. provide adequate instruments to implement national strategies, tobacco control policies and programmes in order to ensure effective protection from exposure to tobacco smoke;

6. communicate to the Commission, if possible within six months after the adoption of this Recommendation, national focal points for tobacco control with a view to exchanging information and best practices as well as policy coordination with other Member States;

7. cooperate closely among themselves and with the Commission on a coherent framework of definitions, benchmarks and indicators for the implementation of this Recommendation;

8. monitor and evaluate the effectiveness of policy measures using the above-mentioned indicators;

9. inform the Commission of legislative and other action taken in response to this Recommendation and of the results of monitoring and evaluation,

HEREBY INVITES THE COMMISSION TO:

1. report on the implementation, functioning and impacts of the proposed measures, on the basis of the information provided by Member States;

2. in the context of a possible revision of Directive 2001/37/EC, consider all product-related measures aimed at reducing the attractiveness and addictiveness of tobacco products;

3. analyse the legal issues and the evidence base for the impact of plain packaging, including on the functioning of the internal market.

Done at Brussels, 30 November 2009. For the Council The President S. O. LITTORIN

(1) Resolution delivered following non-mandatory consultation (not yet published in the Official Journal).

(2) Opinion of 5 November 2009 (not yet published in the Official Journal).

(3) OJ C 189, 26.7.1989, p. 1.

(4) OJ L 22, 25.1.2003, p. 31.

(5) OJ L 183, 29.6.1989, p. 1.

(6) Cf. Case C-49/00 Commission v. Italy, [2001] ECR I-8575, paragraphs 12-13.

(7) COM(2004) 416 final.

(8) COM(2007) 27 final.

(9) FCTC/COP2(7) Guidelines on protection from exposure to tobacco smoke, as elaborated by the working group convened in accordance with decision FCTC/COP1(15) of the Conference of the Parties to the WHO Framework Convention on Tobacco Control.

(10) OJ L 194, 18.7.2001, p. 26.

(11) OJ L 226, 10.9.2003, p. 24.

(12) See footnote 11.