Politics ‘put before enforcing law’

Date: 11/12/1997

By Peter Chapman and Leyla Linton

THE European Commission's failure to take firm action on a series of alleged breaches of single market law at a key meeting last week has prompted fresh accusations that it is shying away from politically difficult decisions.

Criticism of the way the Commission handles complaints about alleged violations of EU law has resurfaced after the institution's infringments committee once again postponed decisions on a raft of highly controversial cases.

These included the French Loi Evin which restricts advertising of alcohol at televised sporting events, German packaging legislation which lays down tough recycling requirements and another German law which bans discounts for multiple purchases.

In all three cases, critics complain that the measures are an unnecessary obstacle to cross-border trade in breach of single market rules. Yet decisions on all three have been put off repeatedly.

Of the 100 or so cases on the agenda for last week's meeting, just under one-third were discussed in depth because individual Commissioners' representatives raised concerns about the proposed course of action. But decisions were put off in all but a handful of cases.

Critics argue that this shows once again that the Commission finds it hard to grasp the nettle of difficult decisions.

In the case of the Loi Evin, Internal Market Commissioner Mario Monti's call for legal action against the French government was blocked, although officials did agree to reconsider the case at a specially convened meeting in January.

Industry sources claim it was Commission President Jacques Santer who insisted on delaying a ruling, against the advice of the institution's legal service. They say that he has repeatedly demonstrated a reluctance to become embroiled in another tussle over health issues so soon after the BSE and tobacco advertising controversies.

“Without a doubt, the legal viability of some cases has not been in question. But the decision to go forward or not has been based on politics rather that a legal interpretation of the treaty. That is clear,” said a Brussels-based lobbyist for a leading drinks company.

The two German cases which were also postponed until January involve national laws which have already prompted warnings from Monti's single market officials.

The Commission decided three years ago to send a first warning letter to Bonn about its packaging law, which stipulates that a minimum of 72&percent; of drinks sold in Germany must be packaged in recyclable materials. But industry insiders say that because of foot-dragging by the legal services, the letter was not actually dispatched until 18 months later.

Environment Commissioner Ritt Bjerregard's officials argue that the case should be dropped because the legislation is justified on environmental grounds.

But the latest delay has aroused speculation that the Commission is anxious to avoid a clash with Germany over environmental policy in the run-up to national elections next year. John Robinson, an adviser to the EU food, drinks and packaging industry, said that if the case were dropped, it would leave “the door well and truly open to national market protection measures in any sector, however questionable the environmental claims they are based on”.

The second German case delayed until January outlaws the marketing of goods with discounts based on multiple purchases such as 'buy two, get one free” offers.

Once again, critics accuse the legal service of delay in following up a warning letter sent by Monti last year. “Maybe the legal service should be more supportive of infringement procedures that their internal market colleagues are submitting,” said Philippe Kern of record company PolyGram, which was ordered to stop marketing compact discs in this way via a mail order 'record club'.

Action in the only high-profile case where the committee recommended EU court action - on a Greek law restricting the advertising of children's toys on television - was also postponed this week after the full Commission failed to reach a decision on whether to endorse the committee's recommendation.

But Commission spokesman Klaus van der Pas insisted there were good reasons why the institution had delayed action on the cases concerned and denied that the EU executive avoided making decisions which might alienate member states. “The Commission has never shied away from doing its job,” he said.