Twin threat to EU legislation

Date: 08/02/1996

By Rory Watson

EUROPEAN Community law, which ensures legislation is applied impartially in all 15 member states, is being dangerously undermined on two fronts, according to a new report.

The report, to be presented to MEPs next week, warns that national constitutional challenges to European legislative acts and inconsistencies in certain European Court of Justice (ECJ) judgements are affecting the uniform implementation of Community law.

The twin threats have been identified by MEPs as the EU prepares to revise its basic treaties. Their appearance may force member states and EU institutions to consider how best to buttress a legal system which has kept the Union together for over three decades, ensuring fair treatment for national authorities, businesses and individuals alike.

The report, drafted by Greek New Democracy MEP Georgios Anastassopoulos for the Parliament's legal affairs committee, examines the way Community law was applied in 1994.

Anastassopoulos will tell MEPs that “monitoring carried out by constitutional courts of the validity of Community legislative acts in the light of their respective constitutions may jeopardise the uniform application and interpretation of Community law”.

The most striking example of this was the ruling on the Maastricht Treaty by Germany's Constitutional Court in October 1993 which laid down certain conditions for future treaty changes.

Anastassopoulos warns that this trend could reopen the battle with national courts, which many thought was over after France's Conseil d'Etat became the last to accept the primacy of Community law.

Many argue that if the Union exceeds its powers as laid down by the treaties, then it is up to the ECJ to annul it - as it has done in the past - and not national courts.

“Since Community law must apply uniformly in all the member states and since they all have a democratic constitutional system, there is no place for an alleged superiority of any specific constitutional order. This approach would call into question integration as such,” warns Anastassopoulos.

But his report, adopted with just one abstention by the legal affairs committee, also identifies another danger, stressing the need for vigilance against any “accommodative or faint-hearted interpretations of the law which would prevent attainment of the legislator's intended result”.

Anastassopoulos believes this threat is emerging partly because certain ECJ decisions appear to run counter to earlier judgements on the division of responsibilities between EU institutions and member states in a way which has created confusion.

MEPs are expected to call on the European Commission to be as active as possible in ensuring Community law is consistently interpreted as a way of preventing such uncertainty.

The report argues that any moves which could see European law applied differently in member states would distort competition, give some businesses unfair advantages over others and destroy the smooth operation of the internal market.

The Parliament's legal affairs committee's warnings are a direct response to last year's Commission report on the application of Community law. This revealed that Denmark headed the EU league table implementing 97.6&percent; of the 1,213 directives in place at the end of 1994, while Greece was at the bottom with an 86.7&percent; implementation record.

The legal affairs committee, however, criticises the Commission for failing to give a global assessment of the factors behind the crude figures and for not putting forward measures for improving the situation.

Anastassopoulos urges the Commission to speed up its internal legal procedures, draw up a practical guide for individuals explaining their legal rights, provide easier access for citizens to European courts and ensure uniform and effective penalties for any infringements.

He says part of the problem in ensuring the uniform application of European law also lies with national courts, some of which are reluctant to refer cases to the ECJ. In 1994, Italy referred 46 cases, Germany 44 and France 36. At the other end of the scale were Greece with 0, Portugal 1, Ireland 2 and Denmark 4.