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Oliver Bartlett

The European Union (EU) has had a Treaty competence in the field of public health since 1993, however the slow development of this competence has not kept up with the rate at which the EU's policy ambitions in public health have developed, especially in the field of non-communicable disease (NCD) prevention. This has led the EU to rely on alternative legal bases in order to realise these ambitions, leading to a ‘competence gap’ between the legal bases that authorise EU action on NCD prevention and the policies the EU would like to pursue.

This paper will explore, in three stages, how this competence gap might be addressed. First, it will examine the arguments for and against giving the EU public health competences. Second, it will analyse the EU's specific public health competence in Article 168 of the Treaty on the Functioning of the European Union (TFEU) and the general internal market harmonisation competence in Article 114 TFEU, in order to explore the precise boundaries of each competence as legal bases for EU public health action. Third, it will explore the legal relationship between Articles 168 and 114 and explain why, despite a more powerful specific public health competence being a theoretically neat solution to the competence gap, the likelihood of the EU being given increased public health powers is low.

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Oliver Bartlett and Amandine Garde

Alcohol consumption is both a heavily-embedded cultural tradition in European States as well as a persistent source of non-communicable diseases with significant knock-on consequences for public health. Oliver Bartlett and Amandine Garde assess several areas of the EU’s involvement in alcohol policy: Member States’ alcohol policies and their international health context; the Court of Justice of the EU’s discussion of these measures in the context of free movement of goods rules; and the EU’s specific policies on alcohol. The contrast with EU tobacco policy is stark. The EU Commission has failed to rely sufficiently on evidence when making policy, and the CJEU has not fully captured the complexity of interests taken into account by Member States.