Commission of the European Communities v Council of the European Union.

• Jurisdiction: European Union
• Celex Number: 62005CJ0440
• ECLI: ECLI:EU:C:2007:625
• Court: Court of Justice (European Union)
• Date: 23 October 2007
• Docket Number: C-440/05
• Procedure Type: Recours en annulation - fondé

Case C-440/05

Commission of the European Communities

v

Council of the European Union

(Action for annulment – Articles 31(1)(e) EU, 34 EU and 47 EU – Framework Decision 2005/667/JHA – Enforcement of the law against ship-source pollution – Criminal penalties – Community competence – Legal basis – Article 80(2) EC)

Opinion of Advocate General Mazák delivered on 28 June 2007

Judgment of the Court (Grand Chamber), 23 October 2007

Summary of the Judgment

1. Transport – Common policy – Competence of the Community

(Arts 6 EC, 71(1) EC and 80(2) EC)

2. European Union – Police and judicial cooperation in criminal matters – Approximation of laws and regulations on maritime safety

(Art. 80(2) EC, Council Framework Decision 2005/667, Arts 2 to 6)

1. Article 80(2) EC does not lay down any explicit limitations as to the nature of the specific common rules which the Council may adopt on that basis. The Community legislature therefore has broad legislative powers under that provision and is competent, by virtue of that provision and in keeping with the other provisions of the Treaty relating to the common transport policy, in particular Article 71(1) EC, to lay down, inter alia, measures to improve transport safety and any other appropriate provisions in the field of maritime transport. The existence of that competence is, moreover, not dependent on the decision of the legislature actually to exercise it.

Since requirements relating to environmental protection, which is one of the essential objectives of the Community, must, according to Article 6 EC, be integrated into the definition and implementation of Community policies and activities, such protection must be regarded as an objective which also forms part of the common transport policy. The Community legislature may therefore, on the basis of Article 80(2) EC and in the exercise of the powers conferred on it by that provision, decide to promote environmental protection. When the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, the Community legislature may require the Member States to introduce such penalties in order to ensure that the rules which it lays down in that field are fully effective.

(see paras 58-60, 66)

2. Under Article 47 EU, none of the provisions of the EC Treaty is to be affected by a provision of the EU Treaty. The same rule is laid down in the first paragraph of Article 29 EU, which introduces Title VI of the EU Treaty, entitled ‘Provisions on police and judicial cooperation in criminal matters’. It is the task of the Court to ensure that acts which, according to the Council, fall within the scope of Title VI do not encroach upon the powers conferred by the EC Treaty on the Community.

Framework Decision 2005/667 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, which requires Member States to apply criminal penalties to certain forms of conduct, is, as is demonstrated by its preamble and Articles 2, 3 and 5 thereof, intended to enhance maritime safety and improve protection of the marine environment against pollution and could, at least as regards those provisions, have been validly adopted on the basis of Article 80(2) EC, with the result that it infringes Article 47 EU.

Provisions such as Articles 4 and 6 of Framework Decision 2005/667, which relate to the type and level of criminal penalties, do not fall within the Community’s sphere of competence and could not therefore have been validly adopted by it.

Since there is an inextricable link between Articles 4 and 6 of Framework Decision 2005/667 and Articles 2, 3 and 5 of that framework decision, and between all those articles and Articles 7 to 12 of the latter, the said framework decision must be annulled in its entirety.

(see paras 52-53, 62, 69-74)

JUDGMENT OF THE COURT (Grand Chamber)

23 October 2007 (*)

(Action for annulment – Articles 31(1)(e) EU, 34 EU and 47 EU – Framework Decision 2005/667/JHA – Enforcement of the law against ship-source pollution – Criminal penalties – Community competence – Legal basis – Article 80(2) EC)

In Case C‑440/05,

APPLICATION for annulment under Article 35(6) EU, brought on 8 December 2005,

Commission of the European Communities, represented by W. Bogensberger and R. Troosters, acting as Agents, with an address for service in Luxembourg,

applicant,

supported by:

European Parliament, represented by M. Gómez-Leal, J. Rodrigues and A. Auersperger Matić, acting as Agents, with an address for service in Luxembourg,

intervener,

v

Council of the European Union, represented by J.-C. Piris and J. Schutte, and by K. Michoel, acting as Agents,

defendant,

supported by:

Kingdom of Belgium, represented by M. Wimmer, acting as Agent,

Czech Republic, represented by T. Boček, acting as Agent,

Kingdom of Denmark, represented by J. Molde, acting as Agent,

Republic of Estonia, represented by L. Uibo, acting as Agent,

Hellenic Republic, represented by S. Chala and A. Samoni-Rantou, acting as Agents, with an address for service in Luxembourg,

French Republic, represented by E. Belliard, G. de Bergues and S. Gasri, acting as Agents,

Ireland, represented by D. O’Hagan, E. Fitzsimons and N. Hyland, acting as Agents, with an address for service in Luxembourg,

Republic of Latvia, represented by E. Balode-Buraka and E. Broks, acting as Agents,

Republic of Lithuania, represented by D. Kriaučiūnas, acting as Agent,

Republic of Hungary, represented by P. Gottfried, acting as Agent,

Republic of Malta, represented by S. Camilleri, acting as Agent, and P. Grech, Deputy Attorney General,

Kingdom of the Netherlands, represented by H.G. Sevenster and M. de Grave, acting as Agents,

Republic of Austria, represented by C. Pesendorfer, acting as Agent, with an address for service in Luxembourg,

Republic of Poland, represented by E. Ośniecka-Tamecka, acting as Agent,

Portuguese Republic, represented by L. Fernandes and M.L. Duarte, acting as Agents,

Slovak Republic, represented by R. Procházka, acting as Agent,

Republic of Finland, represented by E. Bygglin, acting as Agent, with an address for service in Luxembourg,

Kingdom of Sweden, represented by K. Wistrand, acting as Agent, with an address for service in Luxembourg,

United Kingdom of Great Britain and Northern Ireland, represented by E. O’Neill, D.J. Rhee and D. Anderson, acting as Agents, with an address for service in Luxembourg,

interveners,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts and A. Tizzano, Presidents of Chambers, R. Schintgen (Rapporteur), J.N. Cunha Rodrigues, M. Ilešič, J. Malenovský, T. von Danwitz, A. Arabadjiev and C. Toader, Judges,

Advocate General: J. Mazák,

Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 28 June 2007,

gives the following

Judgment

1 By its application, the Commission of the European Communities is seeking annulment of Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution (OJ 2005 L 255, p. 164) (‘the Framework Decision’ or ‘Framework Decision 2005/667’).

Legal context and background to the dispute

2 On 12 July 2005, acting on the initiative of the Commission, the Council of the European Union adopted Framework Decision 2005/667.

3 Based on Title VI of the EU Treaty, in particular on Articles 31(1)(e) EU and 34(2)(b) EU, the Framework Decision constitutes, as is clear from the first five recitals in its preamble, the instrument by which the European Union intends to approximate criminal-law legislation of the Member States by requiring them to provide for criminal penalties in order to combat ship-source pollution caused with intent or by serious negligence.

4 The Framework Decision supplements Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (OJ 2005 L 255, p. 11), with a view to strengthening maritime safety by approximating the legislation of the Member States.

5 Framework Decision 2005/667 provides that the Member States are to adopt a certain number of criminal-law-related measures with a view to attaining the objective pursued by Directive 2005/35, namely to ensure a high level of safety and environmental protection in relation to maritime transport.

6 Article 1 of the Framework Decision states:

‘For the purposes of this framework decision, the definitions provided for in Article 2 of Directive 2005/35/EC shall apply.’

7 Article 2 of the Framework Decision provides:

‘1. Subject to Article 4(2) of this framework decision, each Member State shall take the measures necessary to ensure that an infringement within the meaning of Articles 4 and 5 of Directive 2005/35/EC shall be regarded as a criminal offence.

2. Paragraph 1 shall not apply to crew members in respect of infringements that occur in straits used for international navigation, exclusive economic zones and on the high seas where the conditions set out in Annex I, Regulation 11(b) or in Annex II, Regulation 6(b), of the Marpol 73/78 Convention are satisfied.’

8 Article 3 of the Framework Decision provides:

‘Each Member State shall, in accordance with national law, take the measures necessary to ensure that aiding, abetting or inciting an offence referred to in Article 2 is punishable.’

9 Article 4 of the Framework Decision is worded as follows:

‘1. Each Member State shall take the measures necessary to ensure that the offences referred to in Articles 2 and 3 are punishable by effective, proportionate and dissuasive criminal penalties which shall include, at least...