EU Adopts ‘Criminal Law’ Competency through the Backdoor

The EU has recently decided that it should make Criminal law a community competence. On 25 April 2007 the European Parliament adopted a first reading report, by Nicola Zingaretti, regarding a directive imposing criminal sanctions for the infringement of intellectual property rights. The report was approved by 374 votes to 278 with 17 abstentions. If adopted, this Directive would oblige Member States to deem all intentional infringements of intellectual property rights carried out on a commercial scale as a criminal offence. Hence, all Member States would have to treat breaches of intellectual property rights as criminal matters. Aiding or abetting and inciting anyone to infringe intellectual property rights will also be treated as a criminal offence.

The European Parliament backed the overall Commission proposal as it only amended some of its provisions. An amendment tabled by the GUE/NGL and Greens/EFA groups – rejecting the entire proposal on the basis that criminal law is not actually a Community competence – was later defeated by 452 votes to 197 with 11 abstentions.It needs to be observed that the Draft Directive is to be adopted by co-decision of the Council and the European Parliament, with the Council voting by qualified majority. Hence, the Member States will not have veto power.
Provisions on police and judicial cooperation in criminal matters are within Title VI of the EU Treaty (“Third Pillar”). Decisions and Framework Decisions are the EU’s instruments under this Title. The Proposals are made on the initiative of the Commission or a Member State and they have to be adopted unanimously. Thus, if the Council considers that is necessary to provide for criminal sanctions, it must adopt unanimously a framework decision to support the measures adopted under the EC Treaty. Furthermore, it should be noted that the European Court of Justice has limited powers under the “Third Pillar”, for example, there is no provision for actions for failure to act. Thus, if criminal law is moved into EC Treaty, the power of the EP and ECJ would be increased and national vetoes will be at stake. With this, who needs the Constitution?!

There are several reasons why this Directive should not be adopted.

First of all, Criminal law is not and cannot be a community competence. Criminal jurisdiction is a key part of Member States sovereignty. The Community has no express power under the EC Treaty to adopt criminal law measures. As the law Society has said “there is not a sufficient legal base in the EC treaty for all the provisions contained in the proposed measure. It is inappropriate for an EC Treaty measure to be so prescriptive in relation to criminal sanctions.” The ECJ’s ruling, from September 2005, on the Community’s power to adopt criminal measures regarding environmental policy is not clear and the Commission has made the broadest interpretation possible. There is no need to intervene by imposing criminal penalties as the majority of the Member States already enforce intellectual property rights by means of criminal penalties. Ms Fiona Mactaggart has told the House of Commons European Scrutiny Committee that the United Kingdom’s law already foresees criminal penalties for counterfeiting and piracy on commercial scale but not for all intellectual property offences. Therefore, the government believes that these measures are not essential to deal with intellectual property crime.

The Law Society has said “that the existing scope of criminal law in the UK in this field is appropriate.” Furthermore, they “question whether an across-the-board criminalisation of commercial scale intellectual property infringements throughout the EU is actually in the public interest and whether it serves justice effectively.” Criminal sanctions should be left to national law. It has also suggested that the Directive should only state that “sanctions should be proportionate, legitimate and persuasive, levels of sanctions should be laid down in a Framework Decision.”

If it were adopted, the Directive would be the first to enforce changes to Member States’ criminal law on the grounds of the ECJ’s ruling. It will be the first Directive aimed at harmonizing criminal law.

The text approved by the European Parliament will be sent to the Council of Ministers. Hopefully, an agreement will not be reached between the Council and the European Parliament. If there were a consensus, it will effectively be attempting to enforce criminal law as a key competence, without right, vote, legitimacy or responsibility given to this area by the Member States.

For further details, Margarida Vasconcelos will be writing a more extensive article based on this blog in the next issue [May-June] of The European Journal.