Entrapment between Two Pillars: The European Court of Justice Rulings in Criminal Law

• Published date: 01 July 2009
• Author: Norel Neagu
• Date: 01 July 2009
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00476.x

eulj_476536..551

Entrapment between Two Pillars:

The European Court of Justice Rulings in

Criminal Law

Norel Neagu*

Abstract: This article deals with the possibility of adopting criminal law provisions on a

first pillar legal basis. The analysis focuses on two decisions of the European Court of

Justice (ECJ) dealing with the matter, with specific emphasis on the second one. The main

problems debated are the legality principle, the implicit competence of the Community

legislator, the criteria for establishing when there is a need for adopting criminal law

provisions on an EC legal basis and the scope and depth of this competence. Comparing

the arguments of the Advocate General with the ECJ’s approach to the matter, the author

tries to establish whether the right decision has been adopted and what the solutions for the

future are.

I Introduction

There has been a wide debate in recent years on the possibility of using criminal law

provisions in legislation adopted by the EC. The decision of the European Court of

Justice (ECJ; the Court) in Case 176/031has established a very important rule for the

years to come: the competence of the European legislator to adopt provisions requiring

Member States to adopt criminal law instruments on a first pillar legal basis.

The decision of the ECJ, even if of tremendous importance, raised a series of

questions and polemics as regards the legality principle2in respect of adopting criminal

law provisions, the implicit competence of the European legislator as regards criminal

law instruments used in the first pillar,3and the scope and depth of this competence.4

* Lecturer, Faculty of Law, Criminal Law Department, Police Academy ‘A.I.Cuza’, Bucharest, Romania.

1Case C-176/03, Commission v Council [2005] ECR I-7879.

2M.-L. Cesoni, ‘Compétence pénale: la Cour de justice des Communautés européennes périme-t-elle le

principe de légalité?’, (2006) 125 Journal des tribunaux 365.

3F. Chaltiel, ‘Arrêt CJCE Commission c./ Conseil, du 13 septembre 2005: une nouvelle avancée de l’idée de

souveraineté européenne : la souveraineté pénale en devenir’, (2006) 494 Revue du Marché commun et de

l’Union européenne 24.

4F. Comte, ‘Communication de la Commission au Parlement européen et au Conseil sur les conséquences

de l’arrêt de la Cour du 13-9-2005 relatif aux “sanctions pénales”’, (2006) 1 Revue du droit de l’Union

européenne 111; J. F. Castillo Garcia, ‘The Power of the European Community to Impose Criminal

Penalties’, (2005) 3 EIPAscope 27.

European Law Journal, Vol. 15, No. 4, July 2009, pp. 536–551.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

All these problems are analysed below. Some of them have already been addressed in

the literature,5but, for a solid analysis of the main issue of this article (scope and depth

of Community competence in criminal law), I will review all the other aspects which

might help to clarify the points that the latest decision of the ECJ on the matter6left

unclear.

The analysis focuses on two issues: 1. to establish whether there is a difference as

regards jurisdiction to insist that certain conduct be criminalised and jurisdiction to

ensure effective sanctions for such conduct; 2. the gap between the two pillars, and the

danger that competence be divided such that the political conditions necessary for

effective legislative action (in the first pillar) are absent.

II Background

Imposing criminal law provisions on a first pillar legal basis became an issue when

the European Commission brought action to annul a council framework decision7

adopted pursuant to Title VI of the Treaty establishing the EU. The Commission

claimed that the appropriate legal basis should have been Article 175 EC, whereas

the Council stated that the only provisions relating to criminal law were in Title VI

TEU.

The Court ruled in favour of the Commission, stating as follows:

As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s

competence. However, the last-mentioned finding 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.8

But the Court did not actually establish clear rules regarding the possibility of adopting

criminal law provisions on a first pillar legal basis. The Commission issued a commu-

nication9interpreting the Court’s decision, widening the scope and depth of criminal

law competence in the first pillar. Its views were not shared by the Council, which

continued its policy of adopting framework decisions in matters relating to criminal

law. The main issues at stake were whether the decision applies only to the environment

or whether there are other fields which need criminal law protection and the Commu-

nity legislator is competent to establish not only criminal law offences, but also the type

and level of the penalties for these offences.

5S. White, ‘Harmonisation of criminal law under the first pillar’, (2006) 1 European Law Review 81;

P. Thieffry, ‘Contentieux de la validité des mesures communautaires de protection de l’environnement:

le retour’, (2006) 2 La gazette du palais 873; D. Spinellis, ‘Court of Justice of the European Communities,

Judgment of 13 September 2005 (Case C-176/03, “Commission v. Council”) Annulling the Council

Framework Decision 2003/80/JHA of 27 January 2003 on the Protection of the Environment through

Criminal Law’, (2006) 2 European Constitutional Law Review 293.

6Case C-440/05, Commission v Council, judgment of 23 October 2007.

7Council Framework Decision 2003/80/JHA on the protection of the environment through criminal law,

[2003] OJ L29/55.

8See Case C-176/03, n 1 supra, paras 47 and 48.

9Communication 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.

July 2009 Entrapment between Two Pillars

537

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