Bridging the gap between law enforcement powers

If there is one area where the Commission could be described as active on over the last two years it is justice and home affairs. Some 20% of all initiatives from the Commission are in this field - over which the EU had very few powers only ten years ago.

The stalling of the EU constitution and enlargement have made it difficult to achieve results in getting this legislation passed and implemented. The constitution would have abolished national vetoes for many initiatives on justice and home affairs as well as allowing the Commission to take member states to court for not implementing laws. In its absence the Commission has this year tried to introduce a ‘bridging clause’ taken from the Amsterdam treaty which would to a large extent have the same effect, but member states are opposed to the idea.

Enlargement has brought in ten new member states with different legal and judicial cultural backgrounds and observers say this might have diluted the trust between the original member states for introducing sensitive legislation. Bulgaria and Romania’s entry in January, with specific caveats on justice and home affairs, will only exacerbate this.

There is no doubt that the Commission has had a hard time getting some proposals accepted. The European arrest warrant, which speeds up extradition between member states, was introduced in the post-11 September era and was drafted and accepted quickly. But a sister proposal, the European evidence warrant, took more than three years to gain acceptance in the Council of Ministers and when it was finally passed in June there were a number of allowances made for problems Germany and the Netherlands had with the proposal.

Proposals that remain blocked include a law to set minimum standards for suspects, the setting up of a fundamental rights agency and a law on safeguards for data protection over information held by police and security agencies.

Often proposals the Commission introduces and gets passed in the Council take a long time to see the light of day in member states. The Commission frequently cites the example that only five member states have implemented a law combating the sexual exploitation of children and child pornography. Other examples of poor implementation include laws on combating terrorism, fraud and counterfeiting and exchanging data with Interpol.

Some see the problems stemming from member states signing up to common approaches to justice and home affairs at landmark meetings in Tampere and The Hague but then backing away from Commission proposals that arise out of these commitments. "After Tampere all of these ideas sounded great at the time but now governments are saying they don’t want them," says Hugo Brady, research fellow at the Centre for European Reform. "I’ve heard it said that the Commission keeps cramming the agenda with proposals to highlight how little consensus there is in this area," he adds.

But others believe the Commission love for legislating is counter-productive. "The Commission should be focusing on checking what has been put in place and what is working…at a certain time it is necessary to pause," says Alexander Alvaro, German liberal MEP and member of the Parliament’s civil liberties committee.

The Commission is also accused of not properly following proposals through the Council, preferring the political gestures involved in launching them. "[Franco] Frattini as a former minister for foreign affairs is more used to making appearances and making speeches than pushing things forward," says one member state official.

There have also been a number of high-profile issues where the Commission’s ability to manage has been brought into question. The expansion of the Schengen zone to include the new member states has been delayed by over a year and problems have arisen with the Commission’s management of contractors which will set up the system to allow the expansion. But the Commission points out that delays have also been caused by new and old member states struggling to get their systems up to date.

Since the start of this year the EU has seen an unprecedented immigration influx with thousands of Africans landing on Spain’s Canary Islands, Italy and Malta. The Commission came under pressure from these countries to help deal with the crisis and so Frontex, the EU’s border agency, was given a mission to patrol the seas along the routes that the immigrants travel. Just three member states put forward two ships and two helicopters for the Atlantic mission and the Commission funding for the crisis seemed paltry in comparison to the problems being faced. But some believe member states proved themselves lacking in providing the back-up. "You have to give them [the Commission] the tools to do the job," says Elizabeth Collett, policy analyst with the European Policy Centre.

Another area the Commission gets much criticism for is not pushing the civil liberties agenda enough and, in particular, bowing to US demands on transferring airline passengers’ data for counter-terrorism purposes. Some MEPs believe the EU failed to win proper safeguards for citizens’ data in deals in 2004 and last month.

The Commission says its civil liberties proposals (such as the law on data protection and suspects rights) are stalled in Council and that the deal with the US was something it had to conclude, or risk having European airlines grounded.

For some, though, there should now be a shift away from law enforcement measures and towards protecting EU standards on human rights. "They have two and a half years to improve and since the second half of their term is about to begin they should be focusing more on fundamental rights and civil liberties," says Alvaro.

If there is one area where the Commission could be described as active on over the last two years it is justice and home affairs. Some 20% of all initiatives from the Commission are in this field - over which the EU had very few powers only ten years ago.