EU political horse-trading

Date: 09/05/1996

By Ian S. Forrester QC

SCHOLARLY legal publications are rarely read furtively. Being found in possession of the Oxford Yearbook of European Law is unlikely to be a cause of embarrassment for an official. However, the newly-published volume of that venerable publication contains an article on the political influencing of Commission enforcement of Community law which is likely to cause considerable dismay, excitement and irritation.

The article gives a (former) insider's view about the taking of Commission decisions and contends that Commission enforcement of environmental law has been hindered by organisational, political, and personal difficulties.

For example, should the legal department of a directorate-general be a constitutionally separate entity, whose head of unit could propose action without the need to negotiate hierarchical approval first of all? How should the Commission's Manual of Operational Procedures be applied to the fact that member states almost never reply to informal letters of enquiry from the Commission on time? (Out of 111 letters sent during a 12-month period, two were answered within two months, a third received no answer, and some were answered after three years.) What should be done about the fact that on many occasions, the decision on whether to pursue proceedings against a member state is subject to negotiation at a higher political level?

These discussions are regularly mentioned in the press, yet their legal unorthodoxy is not often documented or discussed.

According to the author, the rule that complaints procedures should either be concluded or have given rise to formal court proceedings within one year has sometimes led to cases being closed, not because they lacked merit but because member states had not answered the Commission's enquiries.

Is it appropriate for member states to receive leaked, semi-leaked or informally-communicated copies of complaints to the Commission about their environmental policies? Is it consistent with the institutions' endorsement of transparency for correspondence between the Commission and member states concerning alleged infringements to be confidential?

The article describes the 'packet meetings' - bi-annual events where each member state and the Commission have a chance to plough through all controversies in a particular enforcement field.

The meetings are a useful means of exchanging information, building contacts between administrations and pressuring member states in the direction of compliance.

The clear impression is that the application of EC environmental law is heavily influenced by political considerations and that member states are often able to escape legal challenges because the Commission decides not to be aggressive.

It would be possible to consider a “small but efficient environmental inspectorate”, but the competent Commissioner sadly reported that such an idea “was not a politically realistic option”.

We all know Brussels is the political horse-trading capital of Europe. Is it a surprise that the Commission is timid about attacking member states? No. In certain member states the receipt of a Commission letter threatening action before the European Court is regarded as a hostile move. Is it surprising that chefs de Cabinet are the interface between member state political pressure and Commission enforcement pressure? No again. Does political pressure corrupt everything that the Commission does? I think not.

The theme of independence and immunity from political pressure in the field of competition is under debate. Dieter Wolf, the president of the Bundeskartellamt, recently made a massively authoritative speech contending that a European Competition Agency was the only way forward: competition decisions should be taken by technicians on technical grounds, not by politicians who can be influenced by extraneous concerns.

I disagree with this view. Of all the international institutions on earth, the Commission has by far the best track record in resisting pressure from member states. Almost everything that the institution does is regretted by one or more EU governments. Member state protection for national champions in competition matters is not very significant. The Commission is not paralysed by member state opposition and can indeed claim to be the leading competition agency of the world's leading trade block.

If we were starting afresh, perhaps it would make sense to give enforcement powers to separate agencies for environment or other matters. But can we really imagine that these agencies would be allowed to operate without member state supervision?

In my view, the Commission's credibility as a competition law enforcer is at risk not because the decision-making process is too exposed to member state influence, but because there are too few decisions, too much power at the centre and, as a result, too little encouragement for the enforcement of the EC competition rules at national level.

In other words, although in some sectors enforcement of the law against hostile member states is slow and difficult, the Commission seems more capable of overcoming such hostility than other agencies.

This article reflects the personal views of the author.