SIMON PLANZER LECTURER IN LAW, UNIVERSITY OF ST.GALLEN ATTORNEY AT LAW, ZURICH HEC Workshop: Regulating Lifestyle Risks in Europe 20-21 September 2012
QUESTIONS • Intro • Why a holistic policy on addiction? • Scientifically indicated? • A holistic EU policy on addiction? • Legally possible? • Conclusion 2
INTRO: LIFESTYLE RISKS? • Consumption of alcohol, tobacco, and unhealthy diets • Gambling? Gambling addiction? • 1) Choice of engaging in the activity and 2) Existence of certain inherent risks • Abstinence, moderate, excessive, addiction 3
WHY A HOLISTIC... - THE STATUS QUO • Numerous national, European, and international bodies, programmes, and initiatives • United Nations Office on Drugs and Crime (‘UNODC’) • European Monitoring Centre for Drugs and Drug Addiction (‘EMCDDA’) • DG Health and Consumers: EU tobacco awareness campaign, Alcohol strategy • DG Justice: research grants through the Drug Prevention and Information Programme 4
WHY A HOLISTIC... - ADDICTION • Addiction: • Behaviour motivated by Craving and Compulsion • Continuation, in spite of adverse consequences • Loss of Control • Do drugs or substances produce addiction? • DSM-IV-TR: definition addict • DSM-5: Doctors’ fear of ‘producing addiction’. • DSM-5 no longer counts tolerance and withdrawal for those taking medications under medical supervision. 5
WHY A HOLISTIC... – BEHAVIOURAL ADDICTIONS Disorder ¡ Disorder ¡ Unkno nknown S n Substanc nce Us Use Di Ga Gamb mbli ling ng Us Use Di A pattern of substance use leading to clinically A. Persistent and recurrent problematic gambling significant impairment or distress, as manifested by behavior as indicated by four (or more) of the following in 2 (or more) of the following, occurring within a 12- a 12-month period: month period ¡ ¡ 1. the substance is often taken in la larger a amo mount nts or 3. has repeated u uns nsuccessful e l efforts to control, cut back, over a lo long nger p period than was intended ¡ or stop gambling ¡ 2. there is a persistent desire or unsuccessful efforts 3. has repeated unsuccessful efforts to cont ntrol, c l, cut b back, , to cut d down o n or cont ntrol substance use ¡ or s stop gambling ¡ 3. a great d deal o l of t time me is spent in activities 4. is often p n preoccupied w with g h gamb mbli ling ng (e.g., persistent necessary to obtain the substance, use the thoughts of reliving past gambling experiences, substance, or recover from its effects ¡ handicapping or planning the next venture, or thinking of ways to get money with which to gamble) ¡ 6
WHY A HOLISTIC... – BEHAVIOURAL ADDICTIONS 6. important social, o l, occupationa nal, o l, or r recreationa nal l activities 8. has jeopardized or lost a significant are given up or reduced because of substance use ¡ rela lations nshi hip, jo , job, o , or e educationa nal o l or c career opportunity because of gambling ¡ 9. tole leranc nce, as defined by either of the following: 1. needs to gamble with inc ncreasing ng a amo mount nts of a. a need for markedly inc ncreased a amo mount nts of the money in order to achieve the desired excitement ¡ substance to achieve intoxication or desired effect ¡ 10. withd hdrawal, as manifested by either of the following: 2. is restle less o or i irritable le when attempting to cut a. the cha haracteristic withdrawal syndrome for the down or stop gambling ¡ substance (refer to Criteria A and B of the criteria sets for Withdrawal from the specific substances) ¡ 11. Craving ng or a strong desire or urge to use a specific Cra Craving ng reminds of withdrawal symptoms in substance. ¡ gambling disorder such as “2. is restless or irritable when attempting to cut down or stop gambling” and of consequences in time management such as “4. is often preoccupied with gambling”. ¡ 7
WHY A HOLISTIC... - SHIFT IN DSM-5 • Contribution of gambling research? • DSM-5: revised diagnostic category “Substance Use and Addictive Disorders” • DSM-5, Section III: “Internet Use Disorder” 8
LEGALITY OF AN EU POLICY ON ADDICTION? • Principle of Conferral • Legal assessment • Principles of Subsidiarity and of Proportionality • Assessments leaving significant discretion to political bodies 9
LEGALITY… - PRINCIPLE OF CONFERRAL • Art. 4(1) TEU: “In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.” • Art. 5(2) TEU: “Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.” • Art. 7 TFEU: “The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.” 10
LEGALITY… - CONSUMER PROTECTION… • Addiction issues: consumer protection or public health? • Consumer protection • Shared competence (Art. 4(2)(f) TFEU), cf. Internal Market • Harmonisation measures (Internal Market; Art. 114, 169)2)(a) TFEU) • “measures which support, supplement and monitor the policy pursued by the Member States” (Art. 169(2)(b) TFEU) 11
LEGALITY… - PUBLIC HEALTH • Shared competence: only in the area of “common safety concerns in public health matters, for the aspects defined in this Treaty” (Art. 4(2)(k) TFEU) • Supplementing competences “to carry out actions to support, coordinate or supplement the actions of the Member States […] [in the area of] protection and improvement of human health” (Art. 6(a) TFEU) • Cf. Art. 168 TFEU 12
CONCLUSION • Competences: • EU has (limited) competence to take action • EU can support, coordinate or supplement Member States’ actions • Possible actions: • Strive for holistic perspective • Coordination of MS’ programmes and initiatives • Collection of data • Regular exchange at expert level • Enhance comparability of data • Adjust research grants at EU level • Economic side effect: allocation of funds 13
Thank you! Contact details on the unpublished paper 14
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