Social policy setback raises wider issues

Date: 05/10/1995

By Michael Mann

THE European Commission is growing increasingly concerned that German resistance to proposals to help Europe's poor and elderly could set a dangerous precedent in EU policy-making.

The dispute over a set of pilot programmes covered by a comparatively minor budget line threatens to undermine Commission efforts to introduce legislation not covered by a specific article of the EU treaties.

For well over a year, Social Affairs Commissioner Pádraig Flynn has been trying to persuade ministers to adopt measures which would establish a range of projects to reduce the 'social exclusion' of the EU's poorest citizens. However, Germany remains steadfast in its refusal to accept the proposal, which must be agreed by member states unanimously.

Although ostensibly a question of subsidiarity, Bonn's resistance stems mainly from its fear of a legal challenge in the German constitutional court (Verfassungsgericht) by the powerful federal states (Länder) if it accepts the Commission's efforts to put the measure through under Article 235 of the Treaty of Rome. This allows the Commission to suggest legislation on an ad hoc basis where the area to be covered does not fall under a specific treaty article.

Germany's fear stems from the infamous case brought before the court by former senior Commission official Manfred Brunner. Brunner challenged Germany's acceptance of the Maastricht Treaty, claiming that it required changes to the German Grundgesetz (Basic Law) which could only be decided by the German parliament.

Although the court judged that Maastricht had not gone too far, it set down certain limits beyond which EU legislation could not step. Bonn is determined to avoid an embarrassing court challenge if the social exclusion programme goes through under Article 235.

The Commission is worried that the dispute will set a precedent and prevent any attempts at legislation in areas where current treaty provisions are limited.

“The proposal is going nowhere at the moment anyway, so we would prefer to see it removed from the Council agenda. This could have explosive consequences if we end up having a row on the principle. Ironically, it's the main critics of the measures who would have benefited,” said a Commission official.

German officials insist that the principle of subsidiarity is at issue, with the Länder anxious to manage social exclusion schemes on a local basis. Reflecting recent developments in several policy areas, Bonn is likely to object to the schemes on budgetary grounds, keen to show opinion at home that its heavy contributions to the EU budget are not being spent unwisely.

A member-state official said: “The last few programmes in Germany have been pretty hopeless, and ran counter to schemes run by the Länder...The only real hope to get an agreement on this is by working quietly behind the scenes, rather than arguing in the full glare of publicity.”

According to Council statistics, Article 235 has been used in a range of policy areas since the Maastricht Treaty came into effect. In 1994, it was the sole legal basis for 24 decisions and regulations.