Proposal for a Council Decision on the signing of the World Health Organisation's Framework Convention on Tobacco Control
Date: 2003-05-26
Institutions: European Commission
Subjects: World Health Organisation, health education, health policy, international convention, marketing, marketing standard, ratification of an agreement, smoking, tobacco industry

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 26.5.2003
COM(2003) 307 final

Proposal for a

COUNCIL DECISION

on the signing of the World Health Organisation's Framework Convention on Tobacco
Control

(presented by the Commission)

EXPLANATORY MEMORANDUM

INTRODUCTION

The objective of the World Health Organisation's Framework Convention on Tobacco Control
is  to  protect  present  and  future  generations  from  the  consequences  of  tobacco  consumption
and exposure to tobacco smoke by providing a framework for tobacco control measures to be
implemented by the Parties at national, regional and international levels. This will make for a
sustained reduction in the levels of tobacco use and exposure to tobacco smoke.

The  Convention  was  adopted  by  the  World  Health  Assembly  on  21  May  2003,  and  will  be
open for signature at the World Health Organisation (WHO) headquarters in Geneva from 16
to 22 June 2003, and after that date at the United Nations headquarters in New York.

Adoption of the Convention was the final step of a procedure initiated in 1999, when, in view
of the serious global health consequences caused by tobacco consumption, the World Health
Organisation decided to establish an intergovernmental body open to all Member States of the
organisation with the aim of drafting and negotiating an international framework convention
on tobacco control and related protocols designed to curtail the global spread of tobacco and
tobacco products and thus limit the health effects resulting from tobacco consumption.

BASIS FOR COMMUNITY INVOLVEMENT IN THE NEGOTIATIONS

The  development  of  a  WHO  Framework  Convention  on  Tobacco  Control  and  related
protocols was seen as an effective way of increasing international co-operation in the field of
public health protection, as provided for in Article 152(3) of the EC Treaty, while at the same
time  ensuring  that  existing  Community  initiatives  were  respected  and  integrated  at
international level.

On  this  basis,  and  taking  into  account  the  Resolution  of  24.05.99  of  the  World  Health
Assembly, allowing the European Community to participate in the drafting and negotiations
for  matters  under  its  competence,  the  Council,  acting  upon  a  recommendation  from  the
Commission, adopted on 22 October 1999 a decision authorising the Commission to negotiate
on behalf of the European Community, within the context of the World Health Organisation,
an international framework convention on tobacco control and related protocols.

The  negotiations  were  conducted  by  the  Commission  in  accordance  with  Negotiating
Directives issued by  the  Council  and  in  consultation with a special committee appointed  by
the Council pursuant to Article 300(1) of the Treaty.

According  to  a  joint  statement  of  the  Council  and  the  Commission  entered  in  the  Council
minutes,  the  Negotiating  Directives  covered  only  matters  falling  within  the  sphere  of
Community competence under Articles 95 and 152 of the Treaty. The Negotiating Directives
were reviewed by the Council on 24 April 2001, with the aim of extending the Commission's
authorisation  to  include  negotiating  on  behalf  of  the  Community  on  matters  within  the
Community  field  of  competence  which  do  not  fall  under  Articles  95  and  152,  including
matters which require unanimity in the Council.

PARTICIPATION OF THE EUROPEAN PARLIAMENT

In its resolution of 13 November 2001, the European Parliament supported the objective of a
Framework  Convention  on  Tobacco  Control  set  by  the  World  Health  Assembly  in  its

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resolution  of  24  May  1999  and  indicated  its  belief  that  a  substantive  international  legal
instrument  such  as  this  would  provide  an  important  means  of  addressing  tobacco-related
problems and, consequently, promoting public health.

There  is  no  explicit  provision  in  the  Framework  Agreement  of  5  July  2000  between  the
Commission  and  the  European  Parliament  for  members  of  the  European  Parliament  to  be
included  in  Community  delegations  participating  in  international negotiations. Nevertheless,
the participation of members of the European Parliament as observers was always welcome,
both by the Commission and by the Council, during the FCTC negotiations.

OUTCOME OF THE NEGOTIATIONS

The Convention deals with a wide range of tobacco control-related matters. Some of the key
elements of the final text include:

Labelling – The text requires that at least 30 per cent - but ideally 50 per cent or more - of the
principal  display  areas  on  tobacco  product  packaging  should  be  taken  up  by  clear  health
warnings in  the  form of text, pictures or  a  combination  of the  two. Packaging and  labelling
requirements  also  prohibit  misleading  language  that  gives  the  false  impression  that  the
product is less  harmful than others. This misleading  language may include  the  use  of  terms
such as “light”, “mild” or “low tar”.

Advertising  –  While  a  wide  majority  of  countries  agreed  that  a  comprehensive  ban  would
have  a  significant  impact  in  reducing  the  consumption  of  tobacco  products,  some  countries
have constitutional provisions – for example, covering free speech for commercial purposes –
that  will  not  allow  them  to  implement  a  comprehensive  ban  in  all  media.  The  final  text
requires  Parties  to  move  towards  a  comprehensive  ban  within  five  years  of  the  Convention
entering  into  force.  It  also  contains  provisions  for  countries  that  cannot  implement  a
comprehensive  ban  which  require  them  to  restrict  tobacco  advertising,  promotion  and
sponsorship within the limits of their constitutions or constitutional principles.

Taxes  –  The  text  formally  recognises  that  tax  and  price  measures  are  an  important  way  of
reducing tobacco consumption, in particular among young people, and requires signatories to
consider  public  health  objectives  when  implementing  tax  and  price  policies  on  tobacco
products.

Liability  –  Parties  to  the  Convention  are  encouraged  to  consider  taking  legislative  action,
where  necessary,  to  deal  with  criminal  and  civil  liability,  including  compensation  where
appropriate.

Financing  –  Parties  are  required  to  provide  financial  support  for  their  national  tobacco
control  programmes.  In  addition,  the  text  encourages  the  use  and  promotion  of  existing
development funding for tobacco control. The eventual need to enhance existing mechanisms
or to set up other appropriate financial mechanisms to channel additional financial resources,
which  may  include  a  voluntary  global  fund,  should  be  assessed  by  the  Conference  of  the
Parties based on a review of the existing and potential sources and mechanisms of assistance
and on an assessment of their adequacy.

Illicit trade – The text recognises that the elimination of smuggling, illicit manufacturing and
counterfeiting of tobacco products, including the development of an effective system for the
tracking  and  tracing  of  such  products,  and  the  development  and  implementation  of  related

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national  law  are  essential  components  of  tobacco  control,  and  requires  the  Parties  to  take
appropriate measures in this regard.

The  text  also  requires  countries  to  promote  treatment  programmes  to  help  people  stop
smoking and education to prevent people from starting, to prohibit sales of tobacco products
to minors, and to limit public exposure to second-hand smoke.

During  the  course  of  the  negotiations,  it  became  clear  that  the  way  in  which  the  Parties
perceive the role that measures relating to each of these matters may play in reducing tobacco
consumption  varies  greatly.  Moreover,  regulation  of  these  matters  often  has  serious
implications  in  other  aspects  of  internal  and  external  policies.  Employment  is  just  one
example:  the  International  Labour  Organisation's  tripartite  meeting  on  the  Future  of
Employment  in  the  Tobacco  Sector,  in  February  2003,  underlined  the  need  to  study  the
impact of tobacco control policies on employment in the tobacco sector, taking into account
the nature of the Framework Convention on Tobacco.

The need to  accommodate different  and  sometimes  opposite  views  within  the  context  of  an
international agreement can help to explain why certain provisions meant to be at the core of
the  Convention  were  somehow  emptied  of  all  binding  effects,  and  became  little  more  than
mere declarations of principle.

Indeed,  the  Convention  does  not  address  all  subjects  in  similar  terms.  The  level  of
commitment  imposed  upon  the  Parties  varies  greatly  according  to  the  issue  at  stake  (e.g.  a
strict deadline is required for the adoption of effective measures regarding the packaging and
labelling  of  tobacco  products  whereas  there  is  no  more  that  a  mere  general  invitation  to
implement tax  and  price  policies).  Furthermore,  detail  given  as  to  the  measures  to  be  taken
differs according to the matter in question (from a detailed  set  of  restrictions on advertising
and  sponsorship  of  tobacco  products,  or  from  a  list  of  measures  to  fight  illicit  trade,  to  a
general reference to the need to provide support for economically viable activities for farmers,
for example).

BASIS FOR COMMUNITY SIGNATURE

The main objective of the Convention is the promotion of public health in a global context.
This  is  in  line  with  the  EC  Treaty,  especially  Article  152,  which  imposes  upon  the
Community the obligation to act towards improving public health and urges the Community
and  the  Member  States  to  foster  co-operation  with  third  countries  and  the  competent
international organisations in the sphere of public health.

Several  of  the  areas  included  in  the  Convention  are  actually  already  covered  by  existing
Community instruments. The Convention does not require amendments to the acquis. On the
contrary, the  core provisions of  the  Convention  reflect  the  solutions  adopted  in  Community
legislation, in accordance with the Negotiating Directives issued by the Council.

Relevant  binding  Community  legislation  in  the  field  of  tobacco  control  regulates  the
advertising  of  tobacco  products  in  the  media  and  through  information  society  services  and
the  sponsorship  by  tobacco  companies  of  both  radio  and  television  programmes  and
international events (Council Directive 89/552/EC of 3 October 1989 on the co-ordination of
certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member  States
concerning  the  pursuit  of  television  broadcasting  activities1,  as  amended  by  Directive

1

OJ L 298, 17.10.1989, p. 23.

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97/36/EC  of  the  European  Parliament  and  of  the  Council  of  30  June  19972  which  bans  all
forms  of  television  advertising  and  teleshopping  for  cigarettes  and  other  tobacco  products;
Directive 03/XX/EC of the European Parliament and of the Council on the approximation of
the  laws,  regulations  and  administrative  provisions  of  the  Member  states  relating  to  the
advertising  and  sponsorship  of  tobacco  products3);  the  contents  and  disclosures  of
cigarettes and respective measurement methods; as well as the packaging and labelling of
tobacco products (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 products4).

Other non-binding legislation addresses, inter alia, sales to children and adolescents; other
forms  of  advertising  and  sponsorship  of  tobacco  products;  disclosure  of  information
concerning the expenditure incurred by manufacturers, importers and large-scale traders in
tobacco  products  on  advertising,  marketing,  sponsorship  and  promotion  campaigns  not
prohibited under national or Community legislation; smoking cessation; as well as protection
from exposure to environmental tobacco smoke (Council Recommendation of 2 December
2002 on the prevention of smoking and on initiatives to improve tobacco control5).

In accordance with Article 300(2) of the EC Treaty, the signing of  international agreements
will be decided on by the Council, acting on  a proposal  from  the  Commission. Considering
that the Convention clearly pursues the attainment of public health, as set out in Article 152 of
the  EC  Treaty,  combined  with  the  fact  that  existing  Community  legislation  in  the  field  of
tobacco  control  is  mainly  based  on  Articles  95  and  152,  and  given  furthermore  that  the
Convention will have an influence on the regulation of international trade in tobacco products,
the Council Decision should be based on Articles 95, 133 and 152 in conjunction with Article
300(2).

2

3

4

5

OJ L 202, 30.7.1997, p. 60.
OJ L …
OJ L 194, 18.7.2001, p. 26.
OJ L 022, 25.1.2003, p. 31.

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Proposal for a

COUNCIL DECISION

on the signing of the World Health Organisation's Framework Convention on Tobacco
Control

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular
Articles 95,  133  and  152  in  conjunction  with  the  first  sentence  of  the  first  subparagraph  of
Article 300(2) thereof,

Having regard to the proposal from the Commission6,

Whereas:

(1)

(2)

(3)

The  Commission  has  negotiated  on  behalf  of  the  Community  a  Framework
Convention on Tobacco Control under the auspices of the World Health Organisation.

The Convention reflects the Community position expressed during the negotiations as
well as the main Community provisions adopted in the area of tobacco control,

Subject to its possible conclusion at a later date, the Convention adopted on 21 May
2003 should be signed,

HAS DECIDED AS FOLLOWS:

Sole Article

1.

Subject to a possible conclusion at a later date, the President of the Council is hereby
authorised  to  designate  the  person  empowered  to  sign,  on  behalf  of  the  European
Community,  the  World  Health  Organisation  Framework  Convention  on  Tobacco
Control.

2.

The text of the Convention is attached to this Decision.

Done at Luxembourg,

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OJ C , , p. .

For the Council
The President

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