Not So Fast, Franco Frattini

After three months of no blogging, many developments in the European Union seem to be picking up just where I left them. A case of synchronicity I am fairly sure is due to having discussed a broad array of themes, the slow workings of the EU, and my own self-centered perception. But still.

A case in point is EU criminal law. I wrote a long-winded treatment of the matter in the pretentiously titled EU Criminal Law - Changes and Consequences.

The description could be comprised by stating that elements of criminal law, which had previously been exclusively intergovernmental, were being arranged under the co-decision procedure. This is significant because it is relatively easier to get legislation through under co-decision. No unanimity is required, instead decisions are made by qualified majority. This also means that criminal law legislation could be released which an individual Member State disagrees with vehemently. This is limited to fields where the EU has a shared or exclusive power (for example: it has shared power on environmental legislation, except in the areas of taxation and land use planning). However, it is still a far-reaching change.

This shift in powers was the result of an European Court of Justice judgement, which found that the lack of attribution of power to legislate on issues of criminal law does 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

The Commission took this to mean that it could just propose criminal law measures on any area of exclusive or shared power, but I already wrote that this seemed a highly questionable interpretation of the judgement. I also wrote that the ECJ's apparent doctrine here seemed questionable, subject to further revision. The reason for this is that the text is ambiguous on the extent of judicial review the ECJ accords itself. On the one hand it writes that the Community legislature can release criminal law when this "is an essential measure", meaning that the Court can make a review on the substance of this question. On the other hand, it writes that the Community legislature can then take the measures "which it considers necessary". This implies that the Court will make a purely procedural review on the appropriateness of the measures in their specifics, if it just considers that some kind of measure is necessary.

The ECJ has now come back on that detail, as is reported in the European Voice:

European Commission proposals to set criminal penalties for breaching EU laws have been thrown into doubt by a judgement of the European Court of Justice (ECJ).

[...]

The ECJ, in a ruling issued this week (23 October), supported the Commission’s challenge to a Council of Ministers agreement on strengthening criminal penalties for pollution from ships. The Commission had argued that the EU law should not have been decided by the member states agreeing among themselves but on a proposal from the Commission, with the participation of the European Parliament. The judges agreed, but they added a caveat that the European Community was “not competent, at the present time, to lay down binding rules on the type and level of criminal penalty which the member states must provide for in their national law”.

This resolves the issue of what kind of measures the 'Community legislature' can decide upon under co-decision: none but general requirements that appropriate penalties are implemented.

A Pyrrhic victory for Commissioner Frattini if there ever was one.