Treaty’s guardian in peril

Date: 16/05/1996

May 9 - St Schuman Day. Since the beginning, the holiest in the EU calendar.

Some 40 years on, Europe's founding fathers, confronted today by the white-shrouded spectre of a gutted Berlaymont - a ghost-like metaphor for the European Commission it once housed - are turning in their graves. And wincing.

Not at the reconstruction of HQ, but at the gathering signs of dilapidation of the Commission as an institution; at the gradual abandonment of its role and authority as the independent guardian of European law, keeper of the EU conscience and motor of its future development; and at the self-inflicted nature of some of this decline.

The Commission is becoming a ghost of its former self in the exercise of the two main constitutional powers granted it by the treaty - the power to initiate legislation and its duty to enforce EC law once adopted.

That its role as law-proposer has drastically diminished is no surprise after the huge legislative programme of the 1980s centring on the single market, followed by member state retrenchment and the onset of subsidiarity. Reduced performance here can be explained and indeed justified by both logic and circumstance.

But dilution of the Commission's job as the EU's law enforcement officer is another matter. Yet there are disturbing signs from inside that the Commission may be heading this way. Its own secretariat-general, backed apparently by its legal service, is now considering a partial abdication of the Commission's treaty-given powers to pursue complaints lodged by individuals and companies against member state governments who infringe EU law.

Coming from departments which report directly to President Jacques Santer, who has made the protection of citizens' rights a key element of the Commission's public relations campaign, this recommendation seems shocking. One can only hope that Mr Santer himself is unaware of it.

Their idea is for the Commission to adopt a more selective approach to the pursuance of complaints made to it against member state governments. In the name of efficiency and good management (so the argument goes), complainants should in most cases be redirected to other means of redress, in particular to national courts.

Accordingly, the Commission should concentrate simply on ensuring that member state legislation is in line with Community directives, and wash its hands of most of the rest.

Seeking redress in national courts is of course a valuable option. But the idea of systematically forcing complainants down the national route is one which many litigants - smaller companies, non-governmental organisations and most individual citizens - would find too costly. For these, the door to redress could effectively be closed.

If a selective complaints policy were ever put into practice, it would break one of the few direct and beneficial links which a Commission often perceived as remote has with those over whom the EU exercises power.

It would probably rule out Commission involvement in the vast majority of cases where citizens, individual or corporate, face direct practical difficulties with the way in which national administrations are implementing national legislation, even if the legislation itself is textually in line with Community rules.

Far from giving Europe a human face, a selective approach to infringements is a prescription for the contrary. It would leave the Commission comfortably enmeshed in a cocoon of its own choosing: Eurocrats talking with their national counterparts about alignment of legal texts rather than ensuring that what is passed into law in Brussels actually has real effect on the ground throughout the Union .

The sad thing is that, provided that it has the will, the Commission is undoubtedly well positioned to play a robust prosecuting role in a way in which the national courts are not. Quite apart from its specific constitutional mandate, it has a uniquely European perspective and the added legal authority of being the ultimate source of the policies it is seeking to enforce. And it is, after all, the EU's executive power.

So why back off from the Commission's constitutional duties as EU policeman? Too many complaints for hard-pressed Commission staff to handle effectively within the prescribed time limits, it is said. Within 12 months of a complaint being registered, the Commission must either formally close it or start action against the member state. But currently there is a backlog of well over 500 complaints registered before the end of 1994 on which no action has been taken.

What are the real causes of this state of affairs? In my view, they are twofold: manpower and will-power.

On manpower, the Commission faces a tricky situation. It has limited resources. But however limited, there is an overwhelming case for greater concentration of staff on so vital a Commission priority as law enforcement. Now the EU legislative stream has dried to a trickle, the Commission's prime objective must be to ensure that laws which are on the statute book actually 'bite', and that European citizenship and the rights that go with it actually mean something in practice. To do otherwise is to make a mockery of the legislative initiatives of earlier Commissions.

Effective law enforcement in a 15-country EU is no doubt a burdensome job - but it would be a much more compelling sign of the Commission's commitment to 'Citizens First' than is the imminent PR programme that bears that name.

The Commission, and in particular its secretariat-general which is in charge of such things, needs to intensify redeployment to enforcement issues rather than, in failing to do so, duck out of one of its major constitutional responsibilities.

Which brings us to will-power. This is a more complex issue, particularly when it comes to infringement proceedings against member state governments. The collective will-power of a multinational civil service such as the Commission presupposes a strong sense of independent European purpose as the principal motivation of its officials, including the increasing number of those drafted in from member state administrations.

No doubt a vast majority of officials have such a clear European commitment. But Commissioners themselves are on occasion not averse to defending the interests “of the country I know best”. The same holds true for their Cabinets which, in infringement proceedings against member states, play a decisive role and are well placed to affect the speed, if not the outcome, of investigations. The seeping mindset of subsidiarity enlivens this trend. European commitment can in some instances be an uphill battle against national allegiance.

Obsession with national sensitivities, coupled sometimes with the absence of clear guidance on how to proceed, translates all too often into dithering. Complaints against investment restrictions by France and Italy, some involving privatisation programmes, go back a long way and proceedings drag on in a Community where free capital movement is supposedly a guaranteed right. On another matter vital to the single market, it took the Commission 18 months between deciding to open proceedings against Germany's packaging rules and actually executing this decision in December 1995.

Prompt defence of citizens' rights can often come second best to political expediency. In a recent case involving French restrictions against foreign ski instructors, the Commission finally appears to have won some concessions; but a separate case involving restrictions on Danish and German instructors accompanying holiday groups was mysteriously blocked at the last moment when the Commission seemed ready to act.

Finally, for all the undoubted qualities of Mr Santer's predecessor, one has to ask whether one of Mr Delors' legacies is not an overly inhibited bureaucracy, including its legal service. The latter appears to have grown so used to a role in political fixing that one wonders on occasion whether it has forgotten its key job at the forefront of Commission law enforcement.

Why should a beefed-up legal service not play as independent a role in the disciplining of non-compliant member states as DGIV (the Directorate-General for competition) does in the case of business infringements?

Whatever the solution, this gradual slide should be stopped. An institution which has diminished confidence in its own vested powers will not inspire the confidence of those over whom it exercises them.

The Commission, as the Danish and French referenda showed, has none of the natural reserves of legitimacy enjoyed by elected national governments. Its legitimacy - its perceived right to exercise power - stands or falls on the clarity of its commitment to the values of European integration as enshrined in the treaty of which it is the guardian.

Time to blow the whistle, Mr Santer.

John Robinson is a partner in the Brussels-based consultancy firm Robinson Linton Associates.