European Court of Justice Soon to Impose Criminal Penalties on UK

On 23 October, the European Court of Justice gave its ruling in a case [Case C-440/05], whereby the Commission was seeking annulment of the Council framework decision to strengthen the criminal-law framework for the enforcement of a law against ship-source pollution on 12 July 2005. According to the Commission, the aim and content of the framework decision came within the European Community’s sphere of competence as provided for by the EC Treaty as part of the common transport policy and therefore the decision should have been adopted on the basis of the EC Treaty rather than on the basis of Title VI of the Treaty on European Union. The Court stressed that the common transport policy is one of the foundations of the Community, and that, within the scope of the competence conferred on it by the EC Treaty, the Community legislature may adopt measures aimed at improving maritime transport safety.

The Framework Decision in question introduces the obligation of Member States to provide for criminal penalties for persons who have committed, aided, abetted or incited certain environmental offences. It also states that the criminal penalties must be effective, dissuasive and proportionate and lays down the type and level of applicable criminal penalties. The European Court of Justice reiterated that the Community has competence under the EC Treaty for adopted criminal law measures when they are necessary for the implementation of Community objectives. The ECJ has stressed that the Framework Decision provisions “must be regarded as being essentially aimed at improving maritime safety, as well as environmental protection, and could have been validly adopted on the basis of Article 80(2) EC.” However, according to the Court “the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence.” Yet Member States are not free to introduce small sanctions since the criminal penalties must be “effective, proportionate and dissuasive.”

According to Article 47 EU, none of the provisions of the EC Treaty is to be affected by a provision of the EU Treaty. Hence, the ECJ concluded that Framework Decision 2005/667 encroaches upon the competence which Article 80(2) EC attributes to the Community, infringing Article 47 EU. Therefore the ECJ annuls the framework decision.

This ruling has implications for a Directive proposed by the Commission last February on the protection of the environment through criminal law under which the Member States would have to impose criminal sanctions for certain environment crime sentences of one to ten years in prison or high fines. However, according to the ECJ ruling the Commission does not have the competence to determine the type and level of criminal penalty which must be left for the Member States. Unsurprisingly, the Commission is looking forward to the Lisbon Treaty as at that point, the Commission will have a legal basis for this law. Article 69f (2) states that “if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.”

The power to impose criminal penalties mut remain a sovereign power and should be handed over to the individual Member States and intergovernmental forms of cooperation but not to the Community. However, in the new Reform Treaty, police and judicial cooperation in criminal matters are incorporated in the Community Treaty. Therefore, the decision making procedure and instruments of action which currently are intergovernmental will be from the “Community method.” Hence, it will be subject to the co-decision procedure (ordinary legislative procedure) and to qualified majority voting. Moreover, the European Court of Justice will have full jurisdiction. The UK has the right to choose whether to take part in JHA legislation but it is not a free choice, as in several cases the UK will be compelled to opt in. Hence, once opted in, the UK can be taken before the ECJ for failure to implement a criminal law.