Shaping Justice Policies In Europe For The Years To Come: Is the Commission biting off more than it can chew?

Last week (21st & 22nd November), the European Commission's Justice Department hosted a high level event on the future of EU Justice Policies. The event was hosted by Commissioner Reding. The meeting provided important context to the Commission's recent proposal on psychoactive substances.

26th November 2013

Last week's event, hosted by Commissioner Reding, served as a sounding board for the Commission's ideas on future integration of justice strategies across Europe. Opening the event, Reding stressed the need for mutual trust between EU Member States, highlighting that an increasingly integrated Europe needed integrated solutions. Her speech was hard to argue with, from the right to legal aide to the rights of children who are born to parents of different nationalities, there are certainly areas of justice which do need to come together to serve the people of Europe.

However, it was whether the Commission are really overstepping their mark that caught the attention of some participants and speakers. Commissioner Reding was not shy in suggesting that a change to the treaties might be in order to bring about justice reforms, strongly hinting at the need for increased EU powers in the area of justice, in order to hold Member States to account, but at the same time noting the need for co-operation based on open dialogue and the need for justice to also be somewhat in line with national traditions.

Legal journalist Joshua Rozenburg of the Guardian warned that amendments to Article 51 of the EU Charter of Fundamental Rights would constitute a big federalising step and a step too far for the UK. Although he stressed his own opinion was not completely in line with the UK Justice Minister's, he highlighted that many Member States did not want the remit of the EU Justice's capabilities to be increased and warned them not to bite off more than they can chew.

Although drug policy was not specifically mentionned over the course of the 2 days, the Commission's recent proposals on psychoactive substances demonstrate the Commission's aim to extend its' remit and powers, with the proposals aiming to subtly move responsibilities from the Council to the Commission and perhaps more controversally is the possible restriction of Member States to react to psychoactive substances in the way they see fit. These proposals are not altogether welcome.

Under the current proposals, if a Member State reacts quickly to a newly emergency substance (before the EU takes action), then they may take whatever action seems necessary. However, if the EU takes action on a substance first, then countries may be restricted with what action they can take.

Although the recent proposals aim to speed up the EU's response to psychoactive substances (which is a very welcome aim), the current proposals also lack oversight from the Council, leaving civil servants of the Commission responsible for deeming the level of risk posed by a psychoactive substance and leaving it to them to decide whether or not to carry out a risk assessment on particular drugs (areas which may be better placed under the responsibility of the Horizontal Working Group on Drugs, where Member States are represented). Although this may be a subtle shift, it is an important one and one which should not be overlooked. Another point which should not be overlooked is how the Commission's communication on psychoactive substances failed to highlight this.

In the graph below, which accompanied the press package on the Commission's proposals on psychoactive drugs, the "New System" flow chart cruically leaves out some of the processes which are actually contained within the new proposal. For example, before Step 1 on the diagram, the EMCDDA, EUROPOL or the Commission (but not the council) decide to undertake a Joint Report. After Step 1 on the diagram, it is then the Commission (not the Council) who can decide whether to do a risk assessment. After Step 2 on the diagram, the Commission (not the Council) make the decision what level of risk a substance poses. Why this has been left out of the communication is unknown and can only lead to speculation.

Shaping Justice Policies In Europe For The Years To Come: Is the Commission biting off more than it can chew?

EURAD would like to see the EU responding rapidly to the phenonemon of psychoactive substances. We agree that Member States should not be able to do less than what the EU decision states but we also believe that Member States should be able to go further and use a blend of legislative approaches to tackle the problem in their own way, according to national circumstances.

References:

European Commission (2013) Press Releases Template. Frequently Asked Questions: Tackling Psychoactive Substances Across Europe