The Treaty Establishing the European Community announces the principle that the powers of the European Community ("Community") are limited to those specifically conferred on it: "The Community shall act within the limits of powers conferred upon it by this Treaty and of the objectives assigned to it therein." However, experience has shown that, in practice, the allocation of power between the Community decisionmaker and Member States is neither clear nor immutable. For example, there is a traditional perception that it is the responsibility of the Community decisionmaker to implement internal market regulations in order to promote the "free movement of goods" and the "free movement of persons, services, and capital," while individual Member States retain autonomy in regulating public health. The European Constitution has also formally embraced this longstanding private (market regulation) versus public (health regulation) dichotomy, using it to divide competences formally. However, the public/private distinction is hazy, as reflected by the history of the Community decisionmaker s regulation of tobacco. Regulation of the manufacture and advertisement of tobacco products necessarily implicates both free market and public health concerns, and a given regulation may be characterized as a market measure in some circumstances and as a public health measure in others.
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