Member states are failing badly when it comes to implementing legislation, with further evidence coming to light that national governments are failing to bring greater coherence to the administration of criminal justice in the European Union.

The European Commission on Monday published a report analysing the implementation by member states of legislation agreed in October 2006 on cooperation in confiscating criminal assets. The legislation provides that one EU country can send a confiscation order to another EU country where a criminal lives or has property or income. The receiving country is supposed (with some permitted exceptions) to confiscate the assets without any further formality.

Like most EU legislation in the area of criminal justice, the law is based on the principle of ‘mutual recognition’, so that each member state is expected to respect and uphold judgments handed down in other member states.

The confiscation order law follows the established pattern for a mutual recognition law, in that it took a long time to be agreed on and has been less than satisfactorily implemented. The deadline for implementation passed in November 2008.

Only 13 of the EU’s 27 states have, to the Commission’s knowledge, completed their transposition of the directive into national law. Of the 14 that have not, Belgium, Cyprus, Greece, Spain, France, Italy and Lithuania have informed the Commission that they are in the process of preparing the necessary implementing measures. The remaining countries (Bulgaria, Estonia, Luxembourg, Malta, Sweden, Slovakia and the UK) have not provided any information to the Commission on their plans for implementation.

Of those 13 countries that have implemented the legislation, only a handful have done so correctly. The Czech Republic, Hungary, the Netherlands, Portugal, Romania and Slovenia are the only member states whose transposition of the legislation has been rated by the Commission as “satisfactory” or better. At the other end of the spectrum is Ireland, where “in most parts the text of the transposition law does not respond to the framework decision [EU legislation], and numerous important provisions and basic principles of mutual recognition have been omitted”.

The confiscation order is not an isolated example. A report prepared by the Commission in 2008 on mutual recognition of financial penalties told a similar story. Only 11 member states had implemented the legislation at the time of the report, despite a deadline of March 2007. Most member states implemented a version of the directive which differed markedly from what they had agreed on at EU level, notably by broadening the range of circumstances in which they could refuse to recognise foreign judgments. This broadening is also widespread in the case of the confiscation order.

Viviane Reding, the European Commissioner for Justice, complained this week about the “unwillingness of many member states” to comply with criminal-justice legislation. For the time being, there is little that she can do about it, other than publicise member states’ failures.

However, on 1 December, 2014, new enforcement powers given to the Commission by the Lisbon Treaty will come into effect. The Commission will then be able to launch infringement proceedings against member states which have not properly implemented criminal justice legislation.

The European commissioners are to have a discussion in the coming weeks on the future development of EU criminal justice policy, and the issue of poor implementation is expected to feature prominently. Reding’s staff are preparing a policy document to inform this debate.

But why are member states faring so badly on implementation? The Commission says that one of the reasons is that criminal justice legislation often contains provisions which are vague and open to differing interpretations, making effective implementation more difficult. This is a consequence of the limits placed on EU competence in the area of criminal justice before the entry into force of the Lisbon Treaty. In those days, criminal justice laws had to be agreed unanimously (so controversial provisions were often blurred), and the EU could not prescribe detailed implementing measures. Under the Lisbon Treaty, criminal justice laws can be more detailed and only a weighted majority of member states is required to secure their approval.

The scope for differing interpretation has been evident in the use of the European Arrest Warrant, the EU’s first piece of mutual-recognition legislation, and arguably its most successful (at least in terms of implementation and use). Since it took effect in 2004, the number of extradition requests under the warrant has varied wildly between member states, with Poland submitting far more requests than any other country.

A further explanation for the implementation problems is that, in some cases, the EU’s criminal justice acquis has simply been poorly drafted. Reding pointed out that ministers had agreed on a system of penalties for human traffickers which was similar in severity to that agreed for currency counterfeiting, a far less serious crime. “We now have a patchwork of not-well-defined laws which are not fully implemented as they risk interfering with national penalty systems,” she said earlier this year.

A greater problem, however, is a simple lack of trust between national judiciaries. National governments are reluctant to accept rulings from foreign courts unquestioningly. Hence the widespread practice of member states watering down EU criminal justice legislation during national implementation. All but three countries (Ireland, Portugal and the Netherlands) have given their judiciaries additional grounds to refuse to execute confiscation orders compared to the (supposedly exhaustive) list contained in the EU law.

The EU’s criminal justice laws have developed in a haphazard and uncertain manner, constrained by the EU’s own treaties and by the sensitivities of some national governments. The lesson from the EU’s experience up to now is that in the criminal justice field all efforts are flawed without a strong basis of trust between national judiciaries. Despite major efforts in this area – for example the creation of the European Judicial Network in 1998 – much trust building remains to be done.