Last August the EU lifted its world wide ban on British beef exports which had been imposed at the height of the BSE (Bovine Spongiform Encephalopathy), mad cow disease, scare in 1996. All member states of the EU with the exception of France and Germany met their legal obligations fairly directly.

The French choose to the challenge the lifting of the ban on food safety concerns but the European Commission dismissed them as groundless. After some delay the Commission initiated legal action against the French in early January at which time the French launched a counter action.

The Germans situation is very different. The federal German government has committed to meeting its obligation to British beef imports in principal. But the effective responsibility for this decisions is that of the regional governments, or Landers.

The Landers tend to maintain uniform policies on such issues. The focus for this activity is the Bundesrat, the second house of the German parliament, which is composed entirely of representatives of the Landers.

It would seem that there is nothing in the German constitution that commits the Lander to observe international commitments of their federal government on issues which are Lander responsibilities. European law, however, takes precedence over member states' law at all levels.

At least two dates set by the German government for resolving its dilemma have passed. The setting of a third, March 16, was not enough to convince the European Commission to delay legal action.

There is almost certainly more sympathy for the German government than the French. Germany has only reported six cases of BSE - all from imported cattle, they have not refuted their obligation, and Germany was not a major market for British beef prior to the export ban.

The Commission, however, has to deal with fact rather than sympathy.

The March 16 meeting of Landers was almost certainly a factor in the timing of the commission's decision to start the legal process which involves a warning letter. The deadline for a response to the warning letter is not until after March 16.

As the federal German government, in contrast to the French government, has to date not claimed an overwhelming food safety concern, it is difficult to see how it could make a meaningful response to the warning letter. And the French experience has failed, in a rather spectacular maaner, to provide the Germans with a pretext.

The prospect of the federal German government defending itself at the European Court of Justice over action, or rather lack of action, by the Landers may persuade them to seek more diligently a solution to the problem.

In a wider context, however, issues of this nature have the potential for further complicating the already complex European decision making process. It is believed to be the first instance of a conflict between a European member state commitment and its responsibility for the decision.

One can think of ways whereby regional governments of a member state could sign-off on, or otherwise delegate, their decision making responsibilities if the member state has the ultimate right of veto. But European Union decisions are increasingly made with qualified majorities.

Ultimately, of course, European law takes precedence. This can and does create resentment, particularly where a substantial body of people feel their concerns are not properly represented.

The Federal Republic of Germany probably faces the prospect of amending its constitution, something that will not be lightly undertaken.

February 16, 2000