Jurisdiction in criminal matters: first and third pillar

In Case C-176/03, the Court of Justice of the European Communities (ECJ) clarified the distribution of powers in criminal matters between the first and third pillars. The European Commission considers the conclusions to be drawn in this communication, which is designed to guide the future exercise of the Commission's right of initiative.

ACT

Communication from the Commission to the European Parliament and the Council on the implications of the Court's judgment of 13 September 2005 (Case C 176/03 Commission v Council) [COM(2005) 583 final – Not published in the Official Journal].

SUMMARY

In this communication the European Commission analyses the scope and implications of the judgment given by the Court of Justice of the European Communities (ECJ) on 13 September 2005 in Case C-176/03. The Commission, supported by the European Parliament, had asked the ECJ to annul Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law. The ECJ accepted the request. The judgment clarifies the distribution of powers between the first and third pillars as regards provisions of criminal law even though, as a general rule, criminal law does not fall within the Community's competence.

Challenging the legal basis

On 15 April 2003, the Commission had brought an action for annulment in the ECJ concerning Council Framework Decision 2003/80/JHA of 27 January 2003. It considered that the legal basis taken by the Council - Articles 29 et seq. of the Treaty on European Union - to impose on Member States an obligation to prescribe criminal penalties against the authors of offences against the environment was incorrect. The Commission considered that the proper legal basis was Article 175(1) of the Treaty establishing the European Community.

It has presented a proposal for a Directive of the protection of the environment on that basis. The two different legal bases adopted by the Council (Union Treaty) and the Commission (EC Treaty) are within two different pillars:

• third pillar: Articles 29 et seq. used by the Council are within Title VI of the Union Treaty (provisions on police and judicial cooperation in criminal matters). Cooperation between Member States in justice and home affairs proceeds within the third pillar, where European integration is not as advanced as in the Community law field. In particular, the Member States themselves share the right of initiative with the Commission. Decisions are taken by unanimous vote in the Council; the European Parliament is only consulted, and there is only limited review by the Court of Justice (for instance, there is no provision for actions for failure to act);
• first pillar: Article 175, used by the Commission, is in Title XIX of the EC Treaty (the environment). In the first pillar, the Commission has the exclusive right of initiative in legislative matters. In the environment, legislation is adopted by the codecision procedure provided for by Article 251 of the EC Treaty.

The Court refers in its analysis to the traditional criterion of the aim and content of the act in order to establish whether the legal basis is correct. After ascertaining whether Articles 1 to 7 of the framework decision affect the powers of the Community under Article 175 EC, the Court further holds that:

• protection of the environment constitutes one of the essential objectives of the Community under the Treaty;
• Articles 174 to 176 EC comprise, as a general rule, the framework within which Community environmental policy must be carried out;
• the choice of the legal basis for a Community measure must rest on objective factors, which are amenable to judicial review, including in particular the aim and the content of the measure.

On account of both their aim and their content, Articles 1 to 7 of the framework decision had as their main purpose the protection of the environment and they could have been properly adopted on the basis of Article 175 EC. The ECJ accordingly annulled Framework Decision 2003/80/JHA as requested by the Commission.

Scope of the judgment

The clarification by the Court judgment of the distribution of powers between the first and the third pillar has led to the following situation:

The provisions of criminal law required for the effective implementation of Community law are a matter for the EC Treaty (first pillar): Where a criminal law provision specific to the matter in hand is needed to ensure the effectiveness of Community law, it is adopted under the first pillar only. But, where there does not appear to be a need to resort to the criminal law at Union level or where there are already adequate horizontal provisions, specific legislation is not introduced at European level. This system brings to an end the double-text mechanism (directive or regulation and framework decision), which has been used on several occasions in the past.

The horizontal criminal law provisions aimed at encouraging police and judicial cooperation fall within Title VI of the Union Treaty (third pillar): These provisions in the broad sense include measures on the mutual recognition of judicial decisions, measures based on the principle of availability and measures on the harmonisation of criminal law. Those aspects of criminal law and criminal procedure which require a horizontal approach do not, in principle, fall within the scope of Community law, examples being questions linked to general rules of criminal law and criminal procedure as well as those related to police and judicial cooperation in criminal matters.

This judgment concerns the Community's environment policy, but goes far beyond the case in question. The same arguments can be applied in their entirety to the other common policies and to the four freedoms (freedom of movement of persons, goods, services and capital), which involve binding legislation with which criminal penalties should be associated in order to ensure their effectiveness.

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 basis. 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. The Commission will have to determine, when submitting proposals, whether this test of necessity is met on a case-by-case basis, depending on the specific needs of the Community policy or freedom in question, which constitutes the link with the legal basis of the EC Treaty. 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 include:

• the actual principle of resorting to criminal penalties;
• the definition of the offence - that is, the constituent element of the offence; and
• the nature and level of the criminal penalties applicable.

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: 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.

Conclusions to be drawn from the judgment

Although the Community legislature may use the criminal law to achieve its objectives, it may do so only if two conditions - necessity and consistency - are met:

• necessity: any use of measures of criminal law must be justified by the need to make the Community policy in question effective;
• consistency: the criminal law measures adopted at sectoral level on a Community basis must respect the overall consistency of the Union's system of criminal law, whether adopted on the basis of the first or the third pillar.

Apart from Framework Decision 2003/80/JHA, the Court's judgment affects several pieces of legislation, since all or some of their provisions were adopted on the wrong legal basis. There is a list in the Annex to the communication:

• Framework Decision 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro and Framework Decision 2001/888/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro;
• Framework Decision 2001/413/JHA combating fraud and counterfeiting of non-cash means of payment;
• Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering and Framework Decision 2001/500/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime;
• the Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence and the Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence;
• Framework Decision 2003/568/JHA on combating corruption in the private sector;
• Framework Decision 2005/222/JHA on attacks against information systems;
• Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements and Framework Decision 2005/667/JHA to strengthen the criminal law framework for the enforcement of the law against ship-source pollution;
• Proposal for a Directive on the criminal law protection of the Community's financial interests;
• Proposal for a European Parliament and Council Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights and for a Council Framework Decision to strengthen the criminal law framework to combat intellectual property offences.

On 23 November 2005, the Commission further decided to bring an action in the ECJ for annulment of Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.

Correcting existing legislation in the light of the judgment

In the Commission's view, there are several ways in which existing law can be rectified in the light of the judgment. One approach would be to review the existing instruments with the sole purpose of bringing them into line with the distribution of powers between the first and the third pillar. With such an approach, the Commission's proposals would not contain any provisions which differ in substance from those of the acts adopted. This option offers a quick and easy solution. It allows the substance of Community legislation to remain unchanged and ensures legal certainty. Such an approach, however, requires the prior agreement of the Commission, the Council and Parliament. If such an agreement could not be reached, the Commission would make use of its power of proposal in order not only to restore the correct legal bases to acts which have been adopted, but also to prioritise substantive solutions in line with what it judges the Community interest to be. This alternative is redundant in the case of pending proposals. The Commission will therefore make the necessary changes to its proposals as and when required. These proposals will then follow the full decision-making procedure applicable to their legal basis.

Last updated: 02.03.2011