New Complaint, Commission/Ombudsman/Parliament

[Szaxe]

Hi, I sent a new complaint.


Complaints can be made up to two years after the action being complained off.


This is a direct response to the Ombudsman stating she could not deal with the Commission because it was a part of a legislative procedure. I have questioned the Ombudsman on 11/14/17 of March 2014, no response thus far, so I have now put in an official complaint to the European Commission/Ombudsman/Parliament .... There is usually a reason Institutions fail to answer

Complaint European Commission








“The European Union sees human rights as universal and indivisible. It actively promotes and defends them both within its borders and when engaging in relations with non-EU countries.


Human rights, democracy and the rule of law are core values of the European Union. Embedded in its founding treaty, they were reinforced when the EU adopted the Charter of Fundamental Rights in 2000, and strengthened still further when the Charter became legally binding with the entry into force of the Lisbon Treaty in 2009.”


Complaint European Commission


This complaint pertains to Art. 20, previously Art.18 of the Tobacco Products Directive.


This Complaint relies upon the “Code of good administrative behaviour” I contend that poorly considered recommendations from the Commission led to legislation by the European Parliament, that if enacted on the National level will violate mine and other European Citizens Human Rights.


It is generally accepted that smokers have their own individual requirement for the amount of nicotine to attain and maintain satisfaction.


It is also generally accepted that it is not the nicotine that does harm but the tar and 4000 or so other chemicals created from the burning of tobacco that does damage to smokers health and can shorten their life expectancy.


Any legislation that directly or indirectly leads to smokers increasing the amount of cigarettes they smoke must be considered as a violation of the “Right to Life” enshrined in European and International Human Right conventions. I contend that the same principle should be applied when considering Electronic Cigarettes and the other constituents of E liquid apart from the nicotine.


The Convention on Human Rights places a positive obligation on Member States of the EU to respect the "Right to Life". This is presently interpreted as excluding Public Authorities, including Governments from enacting legislation that may put their citizens lives in danger or which could affect their life expectancy.


The European Commission, against the recommendations of several scientists and other experts in the field added a new Article to the Tobacco Products Directive Art.18, currently Art.20.


The Commissions recommendations which were accepted and passed by the European Parliament have requirements for member States to limit the strength of nicotine to 20mg/Ml upper limit for E-liquids used for Electronic Cigarettes.


Although it is generally accepted that obtaining nicotine via Electronic Cigarettes is many times safer than via burning tobacco, the other ingredients of E liquid may still have adverse effects, with the the chances of harm increasing with the amounts of vapour inhaled.


It is highly unlikely the European Commission/Parliaments legislation to restrict the strength of E liquid will decrease the amount of nicotine an ex-smoker will ingest to satisfy their nicotine requirement, so the only logical outcome from limiting the nicotine strength is more E liquid will be required for satisfaction.


To put this simply, whatever strength of nicotine the Commission/Parliament impose on Cigarettes or Electronic Cigarettes, users of stronger strengths will merely vape or smoke more to attain/maintain satisfaction. This will increase the amount some citizens smoke or vape which surely can not be considered as responsible legislation.


I have complained to the Commission previously, however not on this issue of Human Rights. I believe the legislation could have dire health consequences for myself and many citizens of the EU.


I did not raise the Human Right issue as it was not particularly referred to in the “Code of good administrative behaviour”, however after further reading I now consider it was an issue the Commission should have taken into account before making recommendations to the Parliament.


The European Ombudsman has stated that the actions of the Commission are not her concern when they are a part of a legislative procedure, I now consider that to be incorrect. See below for a quote from the Ombudsman's website.


“The Ombudsmen as human rights protection mechanisms


As the former Commissioner for Human Rights of the Council of Europe, Alvaro Gil Robles stated: "Through their independence, flexibility and non-conflictual approach to the relations between individuals and the public administration, Ombudsmen have a key role to play in the protection of individual rights. (...) Whilst explicit reference to human rights protection may be absent from the mandate of certain ombudsmen, it is clear that human rights violations by state authorities constitute, at the same time, serious cases of maladministration, and as such fall within the concerns of even the most narrowly defined institutions".


In the case of the European Ombudsman, Article 228 of the Treaty on the Functioning of the European Union empowers me to investigate complaints about maladministration in the activities of the Union institutions, bodies, offices, or agencies. From the very beginning of the European Ombudsman's activity, the term "maladministration" has been interpreted broadly and in a manner that makes it possible to include respect for the rule of law, for principles of good administration, and for fundamental rights in the Ombudsman's remit. This means that allegations that the institutions have breached a fundamental right fall within my mandate.“


I will also be putting this complaint to the European Ombudsman and Parliament.

 

[yodadude]

Right on, honerable Szaxe!. I'm sure you'll get some cut at paste reply saying "not our problem" in many many more and much more confusing words.

 

[Szaxe]

Sorry szaxe, I can't see it as a useful battleground - the 'right to life' argument would surely fail because cigarette use is, at least in theory, a choice. I think funds/sympathetic lawyers would be better employed on, for instance, investigating whether the EU charter allows them to legislate on this sort of thing for any purpose other than harmonisation of law in different EU countries.

The above was a good point made on another forum that I was happy to answer (see below).

Human rights, Rule of law, Maladministration according to the Ombudsman are exempt from scrutiny if part of a legislative procedure. That is what I want establishing prior to further action.


However on the point of Human Rights, a few points. First of all the Right to an "effective remedy" is the right to dispute "Theory" Win or lose is another subject.


But as regards your direct "theory", sky diving is a choice, but in my opinion legislation banning parachutes would also warrant funds and sympathetic lawyers time and effort as regards the "Right to life" Smiling


PS, note there is a big difference between banning Skydiving and banning the safety equipment .... They are not banning vaping just removing the option to vape in an arguably safer manner.

 

[Szaxe]

I am adding a further quote from another forum as I feel this is a very important issue.

We are being attacked on all sides with propaganda at the moment - any way we can strike back,
and make them aware that this is not going to happen without a big fight is all to our benefit.
In the end its about who can make the most noise - they already demonstrated a willingness to
wilfully misinterpret the actual facts - politicians prefer gut instinct to reason, we need to give them gut ache!

My reply to the quote above.

Totally agree. At the moment we are fighting on the issue of Electronic Cigarettes, however Human Rights and the right to access to a remedy effects everyone, not just vapers


If a member state of the EU made legislation that, even indirectly lead to people smoking more and this could not be dealt with effectively on the domestic level the case "WOULD" be admissible according to Art 6 ... "Fair trial" and or Art.13 "effective remedy" of the European Convention for the protection of Human Rights (ECHR). Note a Remedy allows an issue to be decided before the Courts or a relevant Authority. No one can make that call prior to a "Fair hearing".


What is now coming to light is that recommendations leading to Legislation or legislation can not be challenged fairly if the recommendations/legislation is made by European Institutions. It should also be noted an Ombudsman is not recognized as an "effective remedy" by the ECHR, as he/she has no power to enforce his/her opinions.


This is a strange finding, especially as the EU is founded on Fundamental Rights they are failing to adhere too.


Art.18, presently Art.20 is showing that the proposed Human Rights violations of vapers, can easily be applied to any minority or victim.

 

[Szaxe]

This is an expected decision and clearer than I expected .... Although i will continue with this, if the UK introduces this legislation I WILL challenge it on the Human Rights issue domestically and through to the Court of Human Rights.


Remember I don't need to win to show Europe up, just need to show I had an arguably alleged violation .... If you can't challenge an alleged violation, how can you challenge what might be deemed as a violation?

Strasbourg,
Complaint 612/2014/HK
Dear Mr XXXX
I am writing in reply to your letter of in which you complained to the
European Ombudsman about the revised directive 2001/37/EC on Tobacco
Products.
I am sorry to have to inform you that the European Ombudsman cannot
deal with your complaint. This is because it concerns a legislative matter.
The European Ombudsman can investigate only complaints that concern
the administrative work of the European Union's institutions and bodies, for
instance the European Commission and European Union agencies.
We have taken into account the fact that you have already contacted the
competent body, namely the European Parliament, on this matter.
If you wish to know more about the relevant rules relating to the
European Ombudsman's mandate, please consult the annex to my present
letter.
Yours sincerely,
Peter Bonnor
Head of the Registry
Mr XXXXXXX


2
ANNEX - RELEVANT LEGAL RULES
The Treaty on the Functioning of the European Union and the Statute of the
European Ombudsman set certain conditions as to the opening of an inquiry by
the Ombudsman. One of these conditions is:
Article 2(2) - Statute of the European Ombudsman:
"Any citizen of the Union (...) may (...) refer a complaint to the Ombudsman in respect
of an instance of maladministration..."

A letter I have sent to Nikki Sinclaire

Dear Nikki Sinclaire,


Hi Nikki I hope you don't mind me writing to you on an issue that effects Vapers, but also the fundamental rights of European Citizens.


I feel passionately about Citizens having fundamental Human Rights as every one is a minority in one form or another. This I found out when the birth of our illegitimate daughter Born in Holland, to me, a British Father and my partner, a Southern Irish mother, resulted in our daughter being temporarily stateless and without a birth certificate. ( ECHR Application No. 24001/94 )


I will not flannel you with stating I particularly want out of the EU (but my eyes are being opened), however I do not wish to be part of a Union that does not respect the most fundamental principals it is apparently founded upon.


I know Sir Clive Bates has complained to the European Ombudsman and I have complained to the European Ombudsman/Commission/Parliament both prior to and after legislation introduced by the Parliament on the recommendations of the Commission.


I complained about Maladministration leading to bad legislation, but as far as I can see Maladministration is exempt from scrutiny if it leads to legislation?


The Parliament may have passed the offending Art 20, previously Art 18 of the Tobacco Products Directive, however it was the Commission and in my opinion Maladministration by the Commission that led to Art 20 of the TPD.


I have now brought my questions/complaints down to fundamental Human rights as this effects all European Citizens. Please note my arguments are not being rejected on their merit, but on the premise that Human Rights/Maladministration is acceptable/unchallengeable if the breaches are leading to or part of European Legislation. I doubt many EU citizens are aware of this?


I have included mainly stuff I have sent to the European Ombudsman, although I also sent similar to the Parliament and Commission.


I am unsure about my next move, although i am involved in Vapers in Power, a proposed vapers political party.


I am considering starting a website called We Count, and have bought wecount.eu and pre-booked social media sites facebook/twitter/google+/etc.


Although I think we vapers need support, I think the issues raised by the vaping debacle has raised issues that are fundamental and should be raised with the general public regardless of whether the smoke/vape or not.


Your views would be appreciated.


Regards XXXXXXXXX


PS. Please note I asked the Ombudsman on several occasions, see included, how to challenge a Human Right violation by the European Commission or the Parliament and all those requests have remained unanswered. (other than the Ombudsman's media officer trying to strike up unofficial conversations about the issues with me on the Vapers in Power Facebook page.)


Inclusions complaint one and two and decisions one and two and one of the many emails asking about a remedy (unanswered) note: similar sent to the Commission and Parliament.

 

[Szaxe]

EUROPEAN COMMISSION
HEALTH AND CONSUMERS DIRECTORATE-GENERAL
Health systems and products
Substances of human origin and Tobacco control
Dear Mr xxxxxxxx.
Subject: Request to stop or change Tobacco legislation
Thank you for your submission to the Commission dated 30 March 2014 on the
regulation of electronic cigarettes and the Code of Good Administrative Behaviour. As
responsible head of unit, I have been asked to reply to you.
Please note that the rules agreed on electronic cigarettes in the revised Tobacco Products
Directive (TPD) were a joint decision by the European Parliament and Council. The
Commission's role in the trilogue process was to facilitate the negotiations between the
co-legislators, but it welcomed the compromises reached, which put an emphasis on the
safety and quality of consumer electronic cigarettes to be placed on the EU market.
Regarding the setting of a maximum nicotine concentration level of 20mg/ml, please note
that despite differing views on the associated risks, there is consensus that nicotine is not
a harmless substance: it is classified as a toxic substance under existing EU law1. It is
also a highly addictive substance, with which young people and non-smokers may start
experimenting, as a number of recent studies/surveys have confirmed.
Furthermore, the concentration limit was widely considered by the co-legislators to be a
sufficient dose to satisfy the nicotine requirement of those wishing to give up smoking. It
is not expected that this will lead to the consumption of significantly more electronic
cigarette liquid.
In light of the above, the co-legislators considered it appropriate to set the maximum
nicotine concentration limit in the revised TPD.
Regarding other ingredients of electronic cigarettes, several provisions have been
included to ensure maximum safety and quality standards apply. These concern an
obligation on manufacturers to submit information and toxicological data on all
ingredients, to ensure that ingredients are of high purity and do not pose a risk to human
health. Continuous monitoring and reporting are also ensured.
Mr xxxxxxxxxx
xxxxxxxxxxxxx
xxxxx
Norfolk xxxxxxx
United Kingdom
Email: xxxxxxxxxx
1 Regulation (EC) No 1272/2008 on the classification, labelling and packaging of substances and mixtures
(CLP Regulation)
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIÊ - Tel. +32 22991111
Ref. Ares(2014)1265581 - 23/04/2014
It should also be pointed out that although consumer electronic cigarettes may not be sold
at nicotine concentrations above 20 mg/ml, this does not preclude products authorised as
pharmaceuticals from being sold with higher nicotine concentrations.
In the light of the above, we believe that the Commission adhered to its obligations and
respected the principles of good administration and respect for human rights.
Best regards,
/
Head of Unit

I have no delusions that my complaints to the Ombudsman (answered, see above) the Commission (answered see above) and the Parliament (still awaiting an answer) will get a positive answer.


However their answers clearly show that the "co-legislators" made compromises (on my health) and make assumptions that that will not "lead to the consumption of significantly more electronic cigarette liquid". This I know to be false, as I have personal experience of this and unless they can prove me to be a liar they are wrong.


The co-legislators also make assumptions that I could be saved from the need for an increase in my e liquid consumption because " this does not preclude products authorised as pharmaceuticals from being sold with higher nicotine concentrations". It should be noted that their legislation doesn't provide for, or guarantee such a safety net will available when a member state introduces their legislation?


It is also clear that the Commission don't exclude the the fact that their actions could be questioned under the "principles of good administration and respect for human rights" other than in their opinion they are innocent. This raises questions about the response from the Ombudsman?


I have quickly skimmed this but please note this, in my opinion, shows how weak the position of the Commission/Parliament/co-legislators actual is !!!!!


I am sure that the EU will be well aware by now that I am "like a dog with a bone" when I am right, I am sure by now they will be aware of my previous battles.


They must now consider that I can and will bring this argument through the courts and into the ECHR, and they will lose. Remember new arguments won't override the what has been said in their response above. You shouldn't make legislation then search for reasons why it was right. This is why I wanted their reasons now, before they had time to invent new reasons!!!


If a Member State was found in violation of the ECHR, because they abided by the EU's legislation, believe me that would rock the EU down to its foundations .... Lets see how far they want to take this?


My opinion is they should lick their wounds and start again.

 

[steffijade]

Good on you luv.. keep on at the corrupt sods.

I find this part very telling:

" this does not preclude products authorised as pharmaceuticals from being sold with higher nicotine concentrations"

Just goes to show they are well aware of, and indeed, facilitating the plans of big tobacco/big pharma to corner the high nic strength market. No doubt the lobbying funds of both big T and big P were liberally sprinkled around to gain this option.

Of course, what both big T and big P have failed to realise is that a lot of people end up switching completely to vaping, even if their initial intent is to circumvent smoking bans (something which may become academic if the antz get their way and get vaping brought under the umbrella of smoking bans). They further fail to realise that once people do switch to vaping full time, they tend to lower their nic content, so all that money they've spent on lobbying and all the money they'll have to spend to be granted their bullshit 'medicinal' licenses could well be a bad long term investment.

Both big T and big P are used to smokers making quit attempts and on the whole, ultimately failing and going back to smoking.. a situation where they both make profits. If smokers try vaping, find it works for them and start vaping full time instead of smoking, the general trend towards nic reduction would see both of them lose customers as smokers stop buying cigarettes and then eventually stop buying hi nic devices.

They're fighting a losing battle and they can't even see it. They're so used to their corrupt methods winning the day for them that they just expect success and failure doesn't even seem to register with them. It will only begin to register in the long term as it slowly dawns on them that the regulations are extremely difficult to police/enforce and people decide they don't want to buy their overpriced tat.

Keep up the good work.

 

[Szaxe]

Thanks Steff, I like others have received replies from the Ombudsman/Commission before, but this is the first time I have seen them trying to defend their decisions .... I believe I have hit their weak spot. Their answers are supposition, you don't gamble peoples lives on supposition.

 

[Szaxe]

Please look at the flawed reasoning behind the maximum concentration level of 20mg/ml of this "highly addictive" and "Toxic substance". (includes quotes from Commission)


The "co-legislators" considered that 20mg/ml to be "a sufficient dose to satisfy the nicotine requirement of those wishing to give up smoking." If this is correct 20mg/ml is a sufficient amount to be addictive for "young people and non-smokers" who are "experimenting".


If those "experimenting" with vaping rather than the usual choice of "experimenters "Tobacco" want more nicotine, what is their choice? .... More E liquid or tobacco? The commissions arguments are flawed.


It doesn't take a scientist to know if people vape for nicotine, lowering the nicotine concentration will only increase the amount of E liquid required to achieve the desired amount of nicotine. Regardless of whether the person came to vaping as an experimenter or ex-smoker.

 

[tifrap]

Thank You Szaxe for all your efforts here, as a new vaper who is only just realising he is now part of yet another minority community, I am now a bit wiser and a bit more determined to support the cause. More power to you.