Opinion of the European Economic and Social Committee on the Proposal for a Decision of the European Parliament and of the Council establishing a Programme of Community action in the field of health and consumer protection 2007-2013  (COM(2005) 115 final — 2005/0042 (COD))
Date: 2006-02-14
Institutions: European Economic and Social Committee
Subjects: EU programme, action programme, consumer protection, public health

11.4.2006

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Official Journal of the European Union

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II

(Preparatory Acts)

EUROPEAN ECONOMIC AND SOCIAL COMMITTEE

424th PLENARY SESSION HELD ON 14-15 FEBRUARY 2006

Opinion of the European Economic and Social Committee on the Proposal for a Decision of the
European Parliament and of the Council establishing a Programme of Community action in the
field of health and consumer protection 2007-2013

(COM(2005) 115 final — 2005/0042 (COD))

(2006/C 88/01)

On 2 June 2005 the Council decided to consult the European Economic and Social Committee, under Arti-
cles 152 and 153 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 23 January 2006. The rapporteur was Mr Pegado
Liz.

At its 424th plenary session, held on 14 and 15 February 2006 (meeting of 14 February), the European
Economic and Social Committee adopted the following opinion by 130 votes to two with one abstention.

1. Summary

The Commission has submitted a proposal for a decision
1.1
on a ‘single integrated programme’ at Community level in the
fields of public health and consumer protection 2007-2013.
The proposal is backed up by a strategy paper contained in a
Communication and an extended impact study contained in an
appended working paper.

1.2
This is the first time that the Commission has defined a
joint strategy for public health and consumer protection poli-
cies and is doing so for such a long period (seven years). The
EESC acknowledges the Commission's efforts to give fresh
impetus to these two policies, which are now overseen jointly
by a single Directorate-General.

The Commission seeks to justify this innovation on
1.3
social and political grounds. The EESC
legal, economic,
welcomes all of the information provided and the care taken in
the impact study to give a detailed explanation of the various
options possible.

1.4
An extensive hearing organised by the EESC and various
initiatives carried out in the meantime by the Commission and

in the European Parliament have given a broad range of accre-
dited representatives of the main stakeholders the opportunity
to air their points of view on the wording, content and presen-
tation of and the basis for the proposals from the Commission.

The Committee has studied the documents submitted
1.5
information provided by the
and the exhaustive additional
Commission, and has considered the contributions made by the
civil society representatives directly involved in the fields of
public health and consumer protection. In the light of these,
and taking account of the various written contributions sent to
it by a wide range of representative organisations working in
these areas, the EESC has formed the broad opinion that the
proposed decision establishing a joint programme for Com-
munity action on health and consumer protection is not suffi-
ciently justified or elucidated in many respects: the reasons
given do not seem convincing enough to make this a valid
option.

1.6
In particular, the EESC takes the view that although
there are common and complementary points between health
and consumer policy, this is not proof of the synergies referred
to. These points could be developed and implemented by
means of specific cooperation and coordination measures,
focusing on the fundamentally horizontal nature of the two
policies, as is the case with environmental policy, for example.

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1.7
The legal bases of the two policies, which are defined
respectively in Articles 152 and 153 of the Treaty, are of a
very different nature. It is therefore important to avoid the
perverse effect of bringing consumer protection policy into line
with the strict complementarity and subsidiarity criteria that
underpin public health policy, to the detriment of the EU's own
powers in this field. This could also result in an unwanted
‘consumerisation’ of public health, confusing the concepts of
‘user’ and ‘consumer’ and lumping them together as common
aspects of ‘citizenship’.

1.8
The EESC also considers that consumer policy could
lose out in a general budget calculation with a single basis. A
separate decision on each EU policy, as has been the case to
date, would have advantages for both strands, especially given
the current
the
financial perspective.

institutional crisis and grave doubts about

1.9
The EESC considers that the proposed decision not only
fails to cover some of the basic aspects of the two policies, not
ensuring that it is properly funded, but that it perhaps also
sidesteps some genuinely crucial and topical aspects. The
proposed arrangements for implementation, monitoring and
evaluation should focus more on innovation, commitment and
rigour.

1.10
The EESC requests that the powers and responsibilities
of the Consumer Institute be better defined, and that it not be
considered as a mere ‘department’ of the Executive Agency for
Public Health with no powers of its own. This is the only way
to make the decisive contribution that would be desirable to
ensure that current legislation is implemented more effectively
and to better inform, educate and protect consumers.

In its communication,

2.3
the Commission explains the
reasons for this new approach, indicating the common objec-
tives of the two policies and the role they play in people's daily
lives. The Commission also presents the advantages of the new
combined programme in terms of synergies that could lead to
both budgetary and administrative savings, resulting in greater
efficiency.

2.4
Its chosen strategy is based on the need to create syner-
gies between the two policies, which would help to achieve
economies of scale and savings in financial management and
would lead to administrative efficiency. This would also ensure
greater consistency between measures and give these issues
greater visibility on the political agenda.

According to the Commission, the common aims of this

2.5
joint policy should be:

— to protect citizens from risks and threats which are beyond

the control of individuals;

— to enable them to take better decisions about their health

and their interests as consumers;

— to mainstream health and consumer policy objectives

across all Community policies.

2.6

Relating to health policy, the objectives would be to:

— protect citizens against health threats;

— promote policies that lead to a healthier way of life;

— contribute to reducing the incidence of major diseases;

— make healthcare systems more efficient and effective;

— provide more and better information on health.

2.7

As regards consumer policy, the objectives would be to:

— ensure an equally high level of protection for all EU consu-

2. Introduction: Gist of the communication and of the

mers;

Commission's proposal for a decision

In a Communication entitled Healthier, safer, more confi-
2.1
the
citizens: a health and consumer protection strategy,
dent
Commission proposes that Parliament and the Council adopt a
Decision with a view to establishing a Programme of Com-
munity action in the field of Health and Consumer protection
2007-2013.

— empower consumers to defend their own interests;

— broaden the scope of the Executive Agency for Health to

accommodate a Consumer Institute.

3. Assessment of the Commission communication and

proposal

The Commission has, for the first time, presented a new
2.2
strategy and a Community action programme for 2007-2013
which brings together public health policy and consumer
protection policy.

3.1.1
The legal bases of Community public health and
consumer protection policies are of a completely different

3.1 The joint programme: an overview

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nature. Health policy is essentially the responsibility of the
Member States, with EU action being allowed only where it
complements national policies, as regards the specific aspects
set out in Article 152 (1). However, consumer policy, as set out
in the Treaty, especially following Amsterdam, has largely been
subject to a common approach, with a view to promoting
consumers' rights and protecting their interests,
in particular
when this concerns the completion of the internal market (2).

3.1.6
The Committee acknowledges that while these two
policies do have aspects in common, the same is true (possibly
even to a greater extent) of other policy areas (3). Furthermore,
the Commission has not incontrovertibly demonstrated that the
common aspects of actions to be carried out under the two
policies can only be achieved through a single integrated
programme, or even that this is the most appropriate or benefi-
cial way (4).

3.1.2
There is thus no legal basis for referring to a supposed
shared legal 'identity' between Articles 152 and 153 on which
to base a strategy and an integrated programme for action in
the fields of public health and consumer protection.

3.1.7
Some consumer organisations believe that this inte-
grated approach entails various problems, and the EESC agrees
in some cases, including:

Furthermore,

in the Member States,

the legal and
3.1.3
constitutional nature of the right to healthcare is completely
distinct from that of consumers' rights, and protection of these
rights also takes very different forms.

3.1.4
This does not mean that the EESC fails to acknowledge
importance today of public health-related issues,
the crucial
which are in themselves reason enough for developing a strong
European public health policy that could also be seen as an
instrument with which to combat poverty and exclusion. It is a
matter of regret that the failure to approve the constitutional
treaty may have contributed to the lack of real progress in this
area.

The EESC must emphasise that

3.1.5
the concepts of
‘consumer’ and ‘patient’ are not synonymous, and their motiva-
tions are not the same. ‘Consumers’ are not exclusively private
individuals and take their decisions in relation to the market,
for mainly economic reasons. Patients cannot be considered as
mere consumers of medicines and of medical care, because
their rights are not purely economic, and are comparable only
with the right to justice or the right to education, which states
uphold by providing services of general interest.

(1) As pointed out by the Director-General of DG SANCO, Robert
Madelin, at the opening of the Open Health Forum 2005 (held in
Brussels on 7 and 8 November 2005) and by MEPs Miroslav Miko-
lasik (EPP) and Dorette Corbey (PES), in their remarks at parallel
session 1 of that forum.

(2) See, for example, the explanation of Vandersenden, Dubois, Latham,
Van den Abeele, Capouet, Van Ackere-Pietry, Gérard and Ayral, in
Mègret's Commentary on EEC Law, Vol VIII, 2a ed, 1996 pp 16 et
seq and 41 et seq; the situation has become even clearer in the draft
Constitution (OJ C 169 of 18 July 2003), if one compares the provi-
sions of Article III-132 on consumer protection, incorporated into
Chapter III of Title III on ‘policies in other areas’, on a completely
even footing with social policy, agricultural or environmental policy
and Article. III-179, on public health, which appears in Chapter V,
on areas in which the EU may only ‘take coordinating, complemen-
tary or supporting action’
in relation to the actions of Member
States, alongside policies on culture, youth, sport, or civil protec-
tion.

— the possibility that consumer policy will become less visible
and will be further eroded as a result of being brought into
line with and/or subordinated to health policy and that it
would be relegated to merely complementing Member
States' policies (5);

— greater difficulties in organising dialogue and coordination
with the responsible national organisations and bodies
which, in the vast majority of cases, do not deal with these
two areas jointly;

— potentially greater difficulties for NGOs that work in either
sector in accessing funding and negotiating co-financing for
actions in their particular fields as a result of
limited
resources or
resources being channelled towards other
players.

In contrast, none of the six basic reasons given in the
3.1.8
impact assessment (pp. 5-6) provides a cast-iron argument for
treating the two policies jointly. Proper policy coordination, as
set out in the excellent Commission initiative on administrative
cooperation between national authorities (6), could be just as
effective.

(3) There are overlaps between consumer policy and public health
policy and other areas such as the environment, competition, the
single market and justice which could in theory also justify a joint
approach.

(4) Simply referring to the content of the ‘financial perspective 2007-
2013’ (COM(2004) 487 final of 14.07.2004, point 3.3, page 24) is
not in itself a persuasive argument, given the current deadlock in
negotiations – it simply shows that the Commission is being consis-
tent in its proposal. This is not the same as providing justification
or proof of the soundness of its decision. It was, as a matter of fact,
precisely the opposite view that emerged clearly from the Open
Health Forum 2005, which accepted the need to strengthen an inde-
pendent European-level public health policy.

(5) As the Commission in fact clearly admits when it states ‘The
proposed strategy and programme aim to implement articles 152
and 153 of the Treaty .... by complementing national action with
value-added measures which cannot be taken at national
level’
(Legislative Financial Statement, p. 41).

(6) Regulation 2006/2004 in OJ L 364 of 09.12.2004.

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3.1.9
The Commission has also failed to demonstrate the
long-term real, fundamental synergies that this harmonisation
could create. Nor does it quantify the economies of scale it
would generate; on the contrary, its impact assessment gives
the impression that this solution is cost-neutral, because simply
adding the two policies together would produce exactly the
same financial framework (7).

3.1.10
Instead, at such a critical time for the EU's financial
perspective, keeping the two policies separate could have the
advantage of opening up two fronts for negotiation and of
making the relevant aspects of each one more visible. This
could help to achieve better results for the resources allocated
to both policies, according to the representative organisations
in these areas.

3.1.11
The EESC is in fact extremely concerned at the idea
that the financial perspectives 2007-2013 might suffer swin-
geing cuts. Whilst not necessarily rendering the programme —
which already has such limited resources — completely unvi-
able, such cuts would at the very least result in it having to be
completely redrafted and submitted once again, with a new set
of priorities and actions. For practical reasons, it would make
no sense simply to cut the budget by a certain percentage, in
proportion to the overall reduction in the budget as a whole.

3.1.12
Lastly, the various aspects that are rightly highlighted
as being common to the two policies can be subject to joint
and concerted actions at both Community and national level,
just as in other Community policy fields such as the environ-
ment, competition, education and culture. The horizontal
nature of the two policies means that they must automatically
be considered in all other policies, as the Commission itself has
at last acknowledged in the set of examples given in Annex 2
to its communication (p. 15).

in the EU more equitable: it does so, however, with a view to
providing a minimum level of protection. This confirms the
line taken in its recent legislative initiatives, which give priority
to total across-the-board harmonisation, offering a low level of
protection. Furthermore,
its
concern at
the systematic adherence to the principle of
applying the law of the country of origin, and warns against
the danger of adopting a narrow approach to consumer protec-
tion that consists of merely providing information about goods
and services (8).

the EESC wishes

to express

3.2.2.2
The EESC considers that the Commission could have
been more innovative (9) and that the new proposals could
have been better developed (10). The EESC drew the Commis-
sion's attention to a number of shortcomings, which still exist,
when it drew up its opinion on Consumer Policy Strategy
2002-2006 (11). More recently,
it adopted an own-initiative
opinion which explored and expanded on this issue, to the
conclusions of which the reader is referred (12).

3.2.2.2.1
issues in the current programme specifically:

The EESC therefore proposes to include certain

— the issue of household overindebtedness;

— the revision of

the arrangements for producer liability,
concluding the revision of the directive on unfair terms in
consumer contracts and reviving the CLAB;

— revisiting the issue of the liability of providers of faulty

services;

3.2 Specific comments

— improving security in e-commerce;

3.2.1
The study group held a public hearing with the main
civil society representatives directly concerned by the Commis-
sion programme. The hearing, which brought together around
70 participants, made an invaluable contribution to the analysis
the Commission communication and proposal, although
of
logistical constraints make it very difficult to carry out an in-
depth analysis of all the various aspects at stake. However, the
aim has been to assess the programme's objectives and targets,
its resources and their appropriate use, and the measures to be
implemented with these resources to achieve the stated aims.

3.2.2 Consu me r s

3.2.2.1
various
measures that should be adopted to make consumer protection

The Commission

highlights

correctly

(7) Point 4.4 of the Impact assessment (p. 32) indeed states that ‘from a
purely financial point of view,
increasing
budgetary spending allocated to the two programmes individually
or to a single combined programme are practically identical’.

the advantages of

— the need to ensure better access to justice and, in particular,

collective mechanisms to protect consumer rights;

— promoting synergies between consumer organisations in

the ‘old’ and ‘new’ Member States;

(8) Typical of this approach is the directive on unfair commercial prac-
tices, as was the proposal on consumer credit (although this was
duly reworked and replaced by a better proposal) and, to a certain
extent, the directive on the sale of consumer goods and associated
guarantees.

(9) As the Commission itself acknowledges, stating ‘indeed, there will
be no major changes in these objectives compared to the Consumer
Policy Strategy 2002-2006’ (Legislative Financial Statement, p. 58).
(10) A reference must be made to two particularly important subjects in
this field, one positive: the fact that a new proposal for a directive
on consumer credit has finally been published [COM(2005) 483
final of 07.10.2005], and the other negative: the decision to with-
regulation on sales promotions
draw the proposal
[COM(2005) 462 final of 27.09.2005].

for

a

(11) OJ C 95 of 23.04.2003.
(12) OJ C 221 of 08.09.2005.

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— taking account of

the new
Member States and of the countries that will certainly join
before the programme ends (13);

the particular situation of

— setting the entire programme in the context of sustainable

consumption and fair trade.

As regards the initiatives which are planned (and
3.2.2.3
which the Committee welcomes and supports),
there is in
many cases a lack of practical information on how and when
they are to be implemented. This applies, for example, to:

— developing a Common Frame of Reference for European

contract law, set out in 4.2.2;

— creating an early warning system to identify rogue traders,

set out in 4.2.3;

recommends that its independence be guaranteed, with clearly
defined responsibilities and powers to stop it simply consti-
tuting more red tape.

3.2.2.8
Lastly, the funds set aside for consumer policy repre-
sent less than 20 % of the total, and account for no more than
seven euro cents per consumer per year for the seven years of
the programme. The funding may appear to have doubled
since the previous programme, but the programme has almost
doubled in length — from four to seven years.

3.2.2.9
It should be added that the simple fact of the forth-
coming accession of new Member States should have resulted
the
that reflects more than just
in a budgetary proposal
programme's duration. This is already inadequate for
the
actions to be carried out, with a substantial proportion being
taken up by the Institute's running costs.

— guaranteeing that consumers' voices will be heard and
developing their organisational capacities, set out in 4.2.2
and 4.2.4;

3.2.3 Pu bli c h e a lt h

— mainstreaming consumer policy into other policies. This is
referred to in points 4.1 and 4.2.2, but nothing is said
about how it is to be achieved.

regards

that, as

The EESC notes

3.2.2.4
the aims of
increasing the participation of civil society and stakeholders in
policy-making and of incorporating consumer policy into other
Community policies, the indicators put forward for monitoring
and assessing the programme's synergies, except for the first
one, are inappropriate for consumer policy.

3.2.2.5
The EESC also considers that it would be useful to
define other indicators for assessing consumer policy in order
to ensure that they are more reliable and tie in more closely
with the objectives outlined in the programme's annex 3.

3.2.2.6 Moreover, although ‘annual work plans’ are to be
drawn up for the implementation of
the new seven-year
programme, it appears that no use will be made of the instru-
ment featured in the 2002-2006 plan, namely the review of
the rolling programme of actions (14). Such a review is all the
more necessary now that the programme has been increased to
seven years.

3.2.2.7
The EESC points out that the organisational struc-
ture and operational methods of the Consumer Institute within
the Executive Health Agency have yet to be defined. It therefore

(13) This is the subject of an interesting draft EP report, rapporteur:

Henrik Dam Kristensen [2004/2157(INI) of 31.05.2005].

(14) Carried out on 15 September 2003 [SEC(2003) 1387, of

27.11.2003].

3.2.3.1
The EESC wishes to highlight the positive aspects of
the Commission programme, specifically the aim of boosting
public health policy by viewing it as a priority and giving it
greater visibility and more effective instruments,
for which
there is an urgent need. Without even mentioning the bird-flu
pandemic threat, there is a clear need for Community-level
cooperation on important aspects of public health — some-
thing that the Commission rightly emphasises (15).

The EESC therefore welcomes the broad guidelines
3.2.3.2
relating to public health, in particular the idea of incorporating
concerns in this field into other Community policies, and the
commitment to prevention, information analysis, closer coop-
eration, the exchange of knowledge and better dissemination of
information.

3.2.3.3
The EESC also welcomes the priority the Commis-
sion attaches to combating inequalities in access to health care,
to the need to promote children's health and to the situations
created by active ageing in the labour market.

3.2.3.4
The Committee shares the Commission's concerns
regarding global health threats and the increasing prevalence of
lifestyle-related diseases, and welcomes the proposed strategy
for improving action on health determinants.

has

adopted

(15) This is clearly demonstrated in the set of decisions that

the
Commission
field
and
[Decisions EC(2005) 3704 and 3705 of 6 October, 4068 of 13
October, 3877 and 3920 of 17 October, 4135 and 4163 of
19 October and 4176 of 20 October, 4197 and 4199 of 21
October,
in, respectively, OJ L 263 of 8 October, 269 of 14
October, 274 of 20 October, 276 of 21 October and 279 of 22
October].

published

this

in

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3.2.3.5
The EESC supports the Commission's commitment
to encouraging organisations working in the health sector and
to giving them more of a say on consultative bodies.
It
welcomes the concern for patient mobility, and for supporting
cooperation between national health systems with a view to
overcoming the challenges they face and to strengthening
mechanisms for exchanging information on public health
issues.

3.2.3.6
The EESC thus acknowledges that the Commission's
treatment of the public health strand has more closely matched
the needs of the sector, in terms of defining objectives, of plan-
ning actions and of the resources allocated — almost three
times the amount scheduled in the previous programme and
more than four times the amount set aside for the consumer
strand.

3.2.3.7
Nevertheless, even here, the EESC can see no signifi-
cant innovations (16) in relation to the substance of the previous
programmes. Its comments on the 2001-2006 programme and
on the European Environment and Health Plan 2004-2010
thus remain entirely valid, in particular as regards the persistent
lack of practical and objectively assessable targets and of a
precise timetable for achieving them (17).

The EESC would have liked to see the inclusion of
3.2.3.8
specific goals to be achieved in respect of strands of
the
previous programme which have been left out of the current
one, such as action to combat inequality in health, especially
gender inequality, the situation facing older people, the most
disadvantaged and communities at the margins of society, the

Brussels, 14 February 2006.

confidentiality of personal data, personal and biological factors,
the adverse effects of radiation and noise, and resistance to anti-
biotics.

3.2.3.9
The EESC would also have liked the programme to
have addressed, in a consistent manner, some extremely impor-
tant issues, such as obesity, HIV/Aids, mental health (18), child
health and childhood diseases and ageing, which, whilst
mentioned in the programme's description, are not given equal
coverage in the proposed decision itself.

3.2.3.10
The Committee is also surprised that the Commis-
sion proposal overlooks some of today's major public health
issues, such as dental health, people's sight, palliative care and
pain management.

3.2.3.11
On a more general note, the Committee would
have liked the Commission to demonstrate greater commitment
to aspects such as the quality of information at all levels and in
all areas, overall risk prevention, public-private partnerships
and cooperation between Member States and at international
level.

3.2.3.12
Lastly, the EESC would prefer the programme to
have set out practical actions facilitating a comparison of
health systems in the EU (19), encouraging the protection of
patients when they are in another Member State (‘EU health
insurance’), more energetically promoting the adoption of
codes of good practice, and creating and developing centres of
excellence and an epidemiology centre.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(16) A comparative analysis of the 2007-2013 and the 2001-2006
programmes shows that the content of points 1.1, 1.2, 1.3, 1.4,
1.6, 3.1, 3.2, 3.3, 3.4, 5.4, 5.6, 5.7 and 6 of the current proposal
matches that of the previous programme and is simply numbered
differently. Point 1.5 contains a degree of innovation, as does the
detail of point 2, although health emergencies already featured in
the previous programme; points 3.5, 3.6, and 3.7; all of point 4,
which was only vaguely sketched out in the Commission commu-
nication supporting the previous programme; points 5.1, 5.2, 5.3,
5.5 and 5.8. In contrast, the reference to actions in the field of
cooperation with candidate countries and third countries has disap-
peared from the current programme and is only mentioned in
point 2.2 of
the Commission communication supporting the
programme.

(17) OJ C 116 of 20.04.2001 and OJ C 157 of 28.06.2005.

(18) This is all the more surprising because the Commission has just
published an excellent Green Paper on a mental health strategy for
the European Union [COM(2005) 484 final of 14 October 2005].
The Green Paper follows on from a range of activities carried out
in this field since 1997, which are described in the report drawn
up by Professor Ville Lehtinen in December 2004. It shows that the
Commission can, on its own initiative, carry out highly relevant
actions in important areas of public health that have nothing to do
with consumer policy.

(19) The need for this was clearly demonstrated by the WHO's Dr Yves

Charpak at the Open Health Forum 2005.