EC criminal law competence – Advocate General delivers opinion in case C-440/05

Case C-440/05 is considered a seminal test case, following the ECJ’s environmental crime judgment of 13.9.2005 (C-176/03) annulling a third pillar framework decision for lack of competence. In September 2005 the Court had ruled that the partial harmonisation of environmental criminal law should have been adopted under the first pillar and not the third, as the measure ultimately served the achievement of a first pillar policy (protection of the environment). Whether this ruling also applies to other EC policy areas or has to be read instead as an exception specifically linked to environment protection is the main question of the proceedings in case C-440/05. Supported by the European Parliament, the Commission challenged a third pillar framework decision aiming at harmonising criminal sanctions in relation to ship source pollution, arguing that this matter falls within the Community competence of transport policy. The Council, backed by not less than 20 member states, rejects this argumentation, highlighting member states’ competence to rule on criminal law.

In his opinion Advocate General Mazák makes a number of very interesting observations on the relation of the different pillars, establishing inter alia some kind of ‘primacy’ of first pillar Community law over second and third pillar Union law,

«or, more particularly, the primacy of Community action under the EC Treaty over activities undertaken on the basis of Title V or Title VI of the EU Treaty, in that the Council and, as the case may be, the other institutions of the Union must act on the basis of the EC Treaty if and is so far it provides an appropriate legal base for the purpose of the action envisaged (para. 53).»

He then distinguishes between horizontal inter-pillar distribution of powers as opposed to vertical distribution of powers between Community and member states. In this context he rejects the argument brought forward by some member states that if member states are free to act ‘individually’, they must be even more entitled to do so ‘collectively’, i.e. by an intergovernmental third pillar instrument like a framework decision. The Advocate General in essence replies that as an institution of the Union, the Council is more than the sum of its parts and Council action cannot be assimilated to mere ‘collective’ action on the part of member states.

On the legal question at stake, Advocate General Mazák formulates the opinion that there is no sound basis for interpreting the previous case C-176/03 as being limited to environmental protection. In his view, the underlying rationale for accepting a Community competence to partially harmonise substantive criminal law is the general principle of effectiveness which relates to any other Community policy area.

However, the principle of subsidiarity, seen in light of the diverging ideas and existing differences in the national penal systems throughout the EU-27 as well as the» general rule that criminal law and the rules of criminal law fall within the purview of member states» (para. 113), limits the Community criminal law competence is so far as it cannot determine the type and level of penalties to be imposed. Accordingly the Community can only require the imposition of effective, proportionate and dissuasive criminal penalties, but must leave the determination of their type and level to the member states.

Yet, in a more general remark, the Advocate General concedes that the criminal law competence of the Community as established by the Court in case C-176/03 reveals some conceptual flaws. He criticizes in particular that the conditions for the adoption of Community criminal law measures, notably the legislative procedures, differ even within the first pillar, depending on the Community action concerned.

As the system of competences has been infringed by the Council and in spite of his general reservations, he opines that the Court should annul the framework decision in question.

The Court will deliver its judgment within the next months. The Advocate General’s opinion does not bind the Court.

Documents

Opinion of Advocate General Mazak, 28.6.2007, Case C-440/05.

Advocate General delivers opinion in case C-440/05