4 THE EC TREATY AND CRIMINAL
LAW
(27117)
15444/1/05 Rev 1
COM(05) 583
| Commission Communication on the implications of the Court's judgment of 13 September 2005 (Case C- 176/03 Commission v. Council)
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| Legal base | —
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| Document originated | 24 November 2005
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| Deposited in Parliament |
5 January 2006 |
| Department | Home Office
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| Basis of consideration |
EM of 16 January 2006 |
| Previous Committee Report |
None; but see HC 28-xiii (2000-01), para 4 (2 May 2001) and HC 34 -viii (2005-06), para 8 (2 November 2005)
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| To be discussed in Council
| No date set |
| Committee's assessment | Legally and politically important
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| Committee's decision | For debate in European Standing Committee
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Background
4.1 The EC Treaty confers no express power on the Community to
adopt measures of criminal law and procedure. Whereas it is possible
for the EC Treaty and measures adopted under it (notably in relation
to the internal market) to have an effect on the criminal law
and procedure of Member States, it has not been thought possible
(at least by the Member States) to introduce new criminal law
provisions by means of the EC Treaty.
4.2 By way of illustration, Article 61 expressly provides (in
Article 61(c)) for the adoption of measures in the field of judicial
cooperation in civil matters, but the adoption of measures in
the field of police and judicial cooperation in criminal matters
is to be in accordance with the EU Treaty (Article 61(e)). Although
Article 83(2)(a) EC provides for the adoption of measures making
provision for fines and periodic penalty payments to ensure compliance
with the rules on competition in Article 81 and 82 EC, Council
Regulation 17 of 6 February 1962 provided that decisions imposing
fines "shall not be of a criminal law nature", and the
like provision now appears in Article 23(5) of the current Council
Regulation.[12]
4.3 On a number of occasions, the Commission has sought to include,
in proposals under the EC Treaty, provisions requiring the creation
of criminal offences or the imposition of criminal penalties,
but these have been removed in the course of discussions within
the Council. Such was the case, for example, with Directive 2004/48/EC
of 29 April 2004 on the enforcement of intellectual property rights[13]
and with Directive 2005/35/EC of 7 September 2005 on ship-source
pollution.[14]
4.4 Similarly, in the case of Council Framework Decision 2003/80/JHA
of 27 January 2003 on the protection of the environment through
the criminal law,[15]
the Commission had argued that the making of provision for criminal
offences and penalties in relation to environmental pollution
was a matter falling within Community competence. The then Committee
agreed with the Government that criminal law aspects of environmental
protection remained within the competence of the Member States,
and subject to their ability to take measures under the EU Treaty.[16]
The Commission subsequently brought proceedings before the Court
of Justice (ECJ) for the annulment of the Framework Decision,
which led to the judgment of 13 September 2005 in Case C 176/03
Commission v. Council in which the Court found in favour
of the Commission.
The judgment of the ECJ in Commission v. Council
4.5 The proceedings for annulment were brought by the Commission
under Article 35 EU on 15 April 2003. The Commission argued that
the purpose and content of Articles 1 to 7 of the Framework Decision
(which provided for offences related to intentional or negligent
acts causing or likely to cause damage to the environment) fell
within the scope of the Community's powers on the environment,
as stated in Article 3(1) and 174 to 176 EC. The Commission argued
further that the Community was competent under Article 175 EC
to require the Member States to prescribe criminal penalties for
infringements of Community environmental protection legislation
if it takes the view that this is a necessary means of ensuring
that the legislation is effective, and that the harmonisation
of national criminal laws in relation to the constituent elements
of environmental offences was designed to be an aid to the Community
policy in question.
4.6 The Council, supported by Denmark, Germany, Greece,
Spain, France, Ireland, the Netherlands, Portugal, Finland, Sweden
and the United Kingdom, argued that the Community did not have
the power to require the Member States to impose criminal penalties
in respect of the conduct covered by the Framework Decision. Not
only was there no such express power but, given the considerable
significance of criminal law for the sovereignty of the Member
States, there were no grounds for accepting that such a power
could have been impliedly conferred on the Community when specific
competences, such as those under Article 175 EC, had been expressly
conferred. The Council and the Member States also referred to
Articles 135 and 280 EC, which expressly reserve to the Member
States the application of national criminal law and the administration
of justice. The Council and the Member States also referred to
the existence of a specific title on judicial cooperation in criminal
matters (Title VI) in the EU Treaty which expressly conferred
competence on the European Union in relation to criminal matters.
4.7 The ECJ referred first to Articles 29 and 47
EU (which provide, respectively, that Title VI is without prejudice
to the powers of the European Community and that nothing in the
EU Treaty shall affect the EC Treaty). On the basis of these provisions
the ECJ described its task as being "to ensure that acts
which, according to the Council, fall within the scope of Title
VI of the Treaty on European Union do not encroach upon the powers
conferred by the EC Treaty on the Community". The ECJ then
referred to Article 3(1)(l) EC which provided for a Community
policy in the sphere of the environment, and found that this objective
was of a fundamental nature by reason of Article 6 EC (under which
"environmental protection requirements must be integrated
into the definition and implementation of Community policies and
activities").
4.8 In relation to the Framework Decision, the ECJ
found that it had as its objective the protection of the environment
and that it did entail partial harmonisation of the criminal laws
of Member States. The ECJ commented that "as a general rule,
neither criminal law nor the rules of criminal procedure fall
within the Community's competence" but that this did not
prevent "the Community legislature, when the application
of effective, proportionate and dissuasive criminal penalties
by the competent national authorities is an essential measure
for combating serious environmental offences, from taking measures
which relate to the criminal law of the Member States which it
considers necessary in order to ensure that the rules which it
lays down on environmental protection are fully effective."
4.9 The ECJ noted that, although Articles 1 to 7
of the Framework Decision determined that certain conduct which
is particularly detrimental to the environment is to be made criminal,
the choice of criminal penalties to apply was left to Member States
provided that these were effective, proportionate and dissuasive.
The ECJ also noted from the first three recitals to the Framework
Decision that the Council took the view that criminal penalties
were essential for combating serious offences against the environment.
4.10 On the basis of these considerations the ECJ
concluded that Articles 1 to 7 of the Framework Decision could
properly have been adopted under Article 175 EC, and that it was
not possible to infer from Articles 135 and 280(4)EC that "any
harmonisation of criminal law, even as limited as that resulting
from the Framework Decision, must be ruled out even where it is
necessary in order to ensure the effectiveness of Community law".
The ECJ then found that the Framework Decision infringed Article
47 EU by encroaching on the powers conferred on the Community
by Article 175 EC and annulled the instrument.
The communication from the Commission
4.11 The communication sets out the Commission's
views on the implications of the ECJ judgment. It describes the
judgment as clarifying the distribution of powers between the
first and third pillars with respect to the criminal law and states
that it "removes any doubt about a question which has long
been controversial". The Commission also states that one
of the aims of the paper is to suggest a method to "correct"
a situation in relation to texts which have not been adopted on
a proper legal basis.
4.12 The communication reviews the ECJ judgment,
which it describes as laying down principles which "go far
beyond the case in question" and which may also apply to
other Community policies and the freedom of movement of persons,
goods, services and capital. The communication acknowledges that
criminal law as such does not constitute a Community policy, since
"Community action in criminal matters may be based only on
implicit powers associated with a specific legal base". The
communication concludes that: "appropriate measures of criminal
law can be adopted on a Community basis only at sectoral level
and only on condition that there is a clear need to combat serious
shortcomings in the implementation of the Community's objectives
and to provide for criminal law measures to ensure the full effectiveness
of a Community policy or the proper functioning of a freedom".
4.13 The communication describes the Commission's
future policy in these terms:
"The Commission will have to determine,
when submitting proposals, whether this test of necessity is met
on a case-by-case basis. When, for a given sector, the Commission
considers that criminal law measures are required in order to
ensure that Community law is fully effective, these measures may,
depending on the needs of the sector in question, include the
actual principle of resorting to criminal penalties, the definition
of the offence — that is, the constituent elements of the
offence — and, where appropriate the nature and level of
the criminal penalties applicable, or other aspects relating to
criminal law. It is the specific requirement of the Community
policy or freedom in question which constitutes the link with
the legal basis of the EC Treaty which provides the [legal] justification
for such measures. Again it is on a case by case basis, depending
on necessity, that the Commission will determine the degree of
Community involvement in the criminal field, whilst giving priority
as much as possible to horizontal measures not specific to the
relevant sector. Thus, where the effectiveness of Community law
so requires, Member States' freedom to choose the penalties they
apply may, where appropriate, be subject to the framework set
forth by the Community legislature."
4.14 In pursuance of this policy the communication
indicates that the Commission will apply principles of necessity
and consistency. As to necessity, the Commission considers that
any use of measures of criminal law must be justified by the need
to make the Community policy effective, that in principle responsibility
for the proper application of Community law rests with the Member
States, but that in some cases "it is necessary to direct
the action of the Member States" by specifying the type of
behaviour which constitutes a criminal offence and the type of
penalty to be applied. Criminal law measures must also respect
"the overall consistency of the Union's system of criminal
law" so as to ensure that criminal provisions do not become
"fragmented and ill-matched".
4.15 The communications lists in an annex a number
of Framework Decisions which are "entirely or partly incorrect"
since some or all of their provisions "were adopted on the
wrong legal basis". The Commission indicates that its appeal
against Framework Decision 2005/667/JHA of 12 July 2005 on ship-source
pollution will be withdrawn if a proposal "aiming at correcting
the legal basis for the framework decision in question is adopted".
4.16 The Commission also offers a "quick and
easy solution" for the Framework Decisions it has identified
as having an incorrect legal base. This would consist of the adoption
of measures containing the same substantive provisions, but adopted
under the EC Treaty. The Commission adds that this solution would
work "only if Parliament and Council agree not to open discussions
of substance during this special procedure". Otherwise, the
Commission intends to use its power of initiative to "restore"
the correct legal bases to measures which have been adopted.
The Government's view
4.17 In her Explanatory Memorandum of 16 January
2006 the Parliamentary Under-Secretary of State at the Home Office
(Fiona Mactaggart) provides a detailed and helpful analysis of
the policy implications of the Commission's communication. The
Minister's statement is as follows:
"The Government's assessment is that the
judgment and the Commission's interpretation of its legislative
effect as set out in the Communication could have policy implications
for the United Kingdom.
"In practical terms, to some extent, the
judgment may not be too far reaching, in so far as many Member
States already choose to criminalize noncompliance with Community
law; including the United Kingdom in reliance on the provisions
of the European Communities Act 1972. However, the judgment would
allow criminal law measures to be proposed under the first pillar,
which is often subject to qualified majority voting regime and
co-decision procedure with the European Parliament, rather than
unanimity as at present. This could mean that in future the UK
may be required to comply with instruments that entail closer
approximation of criminal law applicable in sectoral policy areas,
but the true scope of the implications of the judgment is not
clear and it is notable that the Commission's communication reflects
the widest possible interpretation, which would allow any criminal
law measures to be included in a First Pillar instrument if they
are considered necessary in order to ensure that the Community
rules in question are effective. A narrower interpretation in
which only provisions dealing with offences and penalties are
rightfully included in First Pillar instruments where necessary
may be possible subject to any subsequent cases clarifying this
area (the Commission have indicated that they will also challenge
the legitimacy of the Council Framework Decision to strengthen
the criminal law framework for the enforcement of the law against
ship-source pollution which was agreed in 2005).
"The judgment also has implications for
instruments that have already been adopted by the Council under
the so called 'dual text approach' in which a Third Pillar Framework
Decision has supplemented a First Pillar instrument with criminal
law provision. In its Communication the Commission proposes a
'fast track' system under which the Council, the European Parliament
and Commission agree to simply repeal the offending Third Pillar
provision and reenact it in new First Pillar instruments. This
approach is not favoured by the Government because we consider
that any new provisions relating to the criminal law introduced
under the First Pillar should be considered on a case by case
basis. First indications are that the Commission's proposal for
a fast track system does not find widespread support within the
European Parliament or Council and will not be adopted.
"We believe it is likely that a number of
Member States will have similar concerns to the UK. But as yet
there is as yet no emerging consensus within the Council as to
the way forward on either future instruments or those that have
already been adopted. As the Communication makes clear, the Commission
does not now have carte blanche to legislate for criminal
law provision in policy areas. Although it has the right of initiative
in the First Pillar, any measures must still be agreed by the
Member States and it is clear that many Member States have reservations
about the Commission's interpretation of the judgement. There
are a number of options open to the Council in its approach to
the effects of the judgment on both future and already adopted
instruments. For example, it is open to the Council simply not
to legislate for sanctions at all at the Community level, relying
upon action at Member State level. It is important however that
in considering the options we take account of the need not to
weaken the position in respect of enforcement in areas which we
properly view as priorities within the EU. We expect the Council
to discuss the implications in more detail under the Austrian
Presidency.
"It is also important that whatever the
legislative process that the criminal law is employed only where
it will be effective and any future proposals for criminal sanctions
ought to be evidence based and fully justified. It is very important
that measures do not place an excessive regulatory burden on businesses.
"The Government will continue to examine
the full implications of the judgment and Communication. For the
time being, the Government is adopting a cautious approach pending
discussion of the judgment and the Commission Communication within
the JHA Council during the Austrian Presidency. Accordingly, the
Government will submit
further information to the Committee in this developing area once
the position is clearer."
Conclusion
4.18 We thank the Minister for her helpful Explanatory
Memorandum with its detailed statement on the policy implications
of the ECJ judgment and the Commission's communication. For our
part, we do not dissent from most of what the Minister says and
we agree that a cautious approach should be adopted.
4.19 However, we consider that a number of points
should be underlined at this stage. The first is to point out
that the criminal law of a Member State could be altered under
the EC Treaty by means of qualified majority voting, with the
consequence that the criminal law of the United Kingdom could
be determined by the EC institutions against the wishes of Parliament.
We think this will be a matter of real public surprise and concern.
In this connection, we draw attention to the statement by the
Commission that it will "determine the degree of Community
involvement in the criminal field" and that it may need to
"direct the action of the Member States" in the field
of criminal law. By contrast, we consider that it is for a democratically
elected national parliament to determine the criminal law for
its territory, and we infer from the Minister's statement that
a large number of Member States take the same view.
4.20 Secondly, we note that subsidiarity and proportionality
receive only the briefest of mentions, with the Commission mainly
concerned to advance its own position.
4.21 Thirdly, we draw attention to the risk that,
with the adoption of internal criminal law measures under the
EC Treaty, the Commission will assert exclusive competence over
the conclusion of international agreements in the criminal field,
thereby ousting the responsibilities and powers of the Member
States.
4.22 We acknowledge that the matter is still at
an early stage, but we consider that the issues raised are of
such fundamental importance that they should be debated. We therefore
recommend that the document should be debated in European Standing
Committee.
12 Council Regulation 17/62 has now been replaced by
Council Regulation (EC) No 1/2003, OJ No L1 of 4.1.2003. Back
13
See (24313) HC 42-xii (2003-04), para 15 (10 March 2004). Back
14
See (24535) HC 63-xxxviii (2002-03) ,para 3 (19 November 2003).
The Directive is published at OJ No L 255 of 30.9.2005, p.11. Back
15
OJ No L 29 of 5.2.2003, p.55. Back
16
See (22227) HC 28-xiii (2000-01), para 4 (2 May 2001). Back
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