A policeman which is uncertain of the law

Date: 25/06/1998

The credibility of the European Commission as the guardian of the EU treaties and enforcer of its rules and regulations has once again been undermined by this week's decision to postpone action on a string of high-profile infringement cases.

Cynics believe that the Commission's reluctance to take action against France for its infamous Loi Evin, Greece for its ban on broadcasting toy advertisements and Germany for its packaging recycling laws stems more from a fear of making politically charged decisions on highly sensitive issues which could spark a public outcry in the member states concerned than from doubts about whether EU laws have been breached.

They claim that Commission President Jacques Santer, in particular, is anxious not to be seen to challenge laws ostensibly designed to protect public health and safety and the environment - however dubious the justification for such legislation - in the wake of public criticism of the Commission's handling of the BSE crisis.

While such caution may be understandable, it is surely misguided. Ensuring that the rules which EU governments sign up to in Brussels are properly implemented at home is one of the Commission's key responsibilities and if it ducks that duty, then all the efforts of the past decade to create a level playing field in the Union's single market could come to nought. Industry's faith in the system will be undermined and other governments will be tempted to take advantage of the Commission's weakness by introducing national legislation designed to protect their own interests with scant regard for the Europe-wide rules of the game.

While the Commission clearly has a responsibility to assess the strength of complaints about alleged breaches of single market rules and to try to resolve disputes before they come to court, it is not the ultimate arbiter of whether EU law has been flouted. That is the job of the European Court of Justice.

The very fact that the Commission has spent so long discussing whether to pursue these alleged infringements clearly indicates that there is, at very least, a case to answer. Otherwise it would have surely decided long ago to simply drop the cases, rather than repeatedly postponing a decision.

If the Commission wishes to preserve its credibility as the EU's policeman - and it must - it simply cannot afford to go on giving the public the impression that political considerations matter more than enforcing the rules.

The only way it can answer such charges is to refer these cases to the ECJ and let the Luxembourg judges decide.