Chapter 9 The Competence Question: The European Community and Criminal Law. Valsamis Mitsilegas The question of the existence and extent of Commu!1i!y_~omp~!enc~j!l-giminal m~hasbeen the subject of long-standing debate. The Treaty establishing the European Community, TEC, (from its first version in the 1950sto the present day) does not contain provisions expressly attributing to the Community competence in criminal matters-in particular competence to define criminal offences and set criminal sanctions. This silence has led to opposing views regarding the existence of Community competence on the field of criminal offences and sanctions. Those in favor of the existence of Community competence have been arguing that criminal law should not be distinguished from other fields of law and that the Community should have powers to impose criminal offences and sanctions in order to safeguard the integrity of the Community legal order. Those more sceptical argue that the criminal law is a special case, since it is inextricably linked with state sovereignty-any conferral of competence in criminal matters by member states to the Community must be express in the Treaties (see Mitsilegas 2006a; Wasmeier and Thwaites 2004). These views were reflected in the attitude of EU institutions when asked to adopt measures defining criminal offences and sanctions before, and in particular after. the intr.s:>~uction of_!he !hk~J2plar in the EU constitutio~alframework by the Maastricht Treaty. The ~~E2P~~_n Commission has been making consistent eff..9rt_s to establish Community criminal law competence in this context.by tabling first pillar proposalsdefining criminal offences and imposing criminal sanctions. Howe~cr,- untilrecently, none of these proposals survived Council negotiations,_. . . -. . - ~ - --- being met with the resistance by member states to accept express criminal law competence for the Community. The outcome of such clashes has been: first pillar instruments where conducthasbeen "prohibited" but not criminalized (seethe - firsi~-pre=Maastncht money--Iaundering directive of 1991, and the subsequent second and third money laundering directives)' a combj}:!.~ion, after Maastricht, oLfir~-Rillar instruments defining certain conduct..JLlliLRarallel third Rillar instruments criminalizing such conduct (see the directive and framework decision on-facilitation of un-a-uthorized entry and ship-source polluti01~1Jhe adoption __of.third.pillar.instead.of the (originally proposed by the Commission) first pillar , r The Environmental CrimeCase! r? y Cl 155The Competence Question: The European Community and Criminal Law 3 Paragraph 20. 4 Denmark, Germany, Greece, Spain, France, Ireland, the Netherlands, Portugal, Finland, Sweden and the United Kingdom. This demonstrates the sensitivity that member ~ 'I' states (and indeed "old" member states in this case) have towards extending Community D 0 competence to criminal law. 5 With the exception of the Netherlands who supported the Council but via a different reasoning. 6 Paragraph 26. 7 Paragraph 27. 8 Paragraphs 28 and 29. 9 Paragraphs 31 and 32. 10 Paragraph 38. 1I Paragraph 39. 12 Paragraph 41. the basis of member states' duty of loyal cooperation and the general principles of effectiveness and equivalence.' _ The Council, supported by no fewer than 11 member states," opposed this view. TheCo-~ncllin(rthe·vastm-a]Or ltY- 6T ihe-member statesS-argued that as the law currently stands, the Community does not have power to require member states to impose criminal penalties in respect of the conduct covered by the framework decision.? Not only is there no express conferral of power in that regard, but, given the considerable significance of criminal lawfor the sovereignty of member states, there are no grounds for accepting that this power can have been implicitly transferred to the Community at the time where substantive competences, such as those exercised under article 175 TEC, were conferred on it.7 Moreover, articles 135 TEC and 280 TEC, which expressly reserve to the member states the application of national criminal law and the administration of justice, confirm that interpretation, which is also borne out by the fact that the Treaty on European Union (TEU) devotes a specific title to judicial cooperation in criminal matters, which expressly confers on the European Union competence in criminal matters." Finally, the Council argued, the Court has never obliged member states to adopt criminal penalties and legislative practice is in keeping with that interpretation." In a landmark ruling, the Court annulled the framework decision. The Court began its findings by an examination of the implications of a.!:.~icle 47 TEU for ~~iI!!~!:pj.1.l~L.2~~pce concerning the issue in question. It noted that article 47 TEU (and article 29 TEU) dictate that nothing in the TEU is to affect the EC Treaty," adding that it is the task of the Court to ensure that third pillar acts do not encroach upon the powers conferred by the EC Treaty on the Community. II The Court then focused on the protection of the environment as a Community f/ objective and noted that ~ll.yi[Q.n.m..~J:lJ'lLprotection constitutesoneof the essential '( ./ objectives oCl~ CO.!!J.munity.12 The Court reiterated its case-law according to which the choice of legal basis must rest on objective factors which are amenable f'"n c-. to judicial review, including in particular the aim and the content of the measure L 0 Security versusJustice? I 2 This section is based on the relevant part of Mitsilegas 2006a, op. cit. _____Paragraph 19 of thejudg!.11~~.: 154 The European Commission decided to react to the Council's choice to adopt criminal legislation in matters deemed to be related to the achievement of Community objectives by challenging the legality of the adoption of the relevant third pillar law. This has thus far led to the intervention by the Court of Justice in a landmark judgment regarding the adoption of the framework decision on environmental crime, Case C-176/03, Commission v. Council, 13 September 2005, a ruling with major implications for EU criminal and constitutional law (for case commentariessee inter alii-Tobler2006; White 2006; see-also LabayIe 2006). The parties and intervenants in the case rehearsed to a great extent the two diametrically opposed views on the existence of Community competence in criminal matters. The_~~ll1ll1issiQ1l.(~llPP-.9rt~d by !4~ J:<:uropean Parliament), argued that the framework decision should be annulle£ ii· should have been adopted under the first p'ill~r,_~§_ tl:!<;: protectionof the..environment is ...'l..f!r.§t pillar objective. The Commission argued that the Community has competence to prescribe criminal penalties for infringements of Community environmental protection legislation if it takes the_viewthat.!ha.tjs ~.E~~c~~s~ry.E!~ans_~~psurin~ JhiJ.Uh~J~gi;;l'!tion is ~ff<;:~Jive __ with the harmonization of national criminal law being designed to be an aid to the Community policy in question.? The Commission also supported first pillar criminal lawcompetence in this context on instruments (see the framework decision on environmental crime); and the nonadoption by the Council of first pillar proposals by the Commission (seethe 2001 proposal for a fraud directive) (see Mitsilegas 2006a; Vervaele 2006). r Traditionally, the European Court of Justice (whileaccepting that Community law may have an impact on national criminal law) had not given any express indication regarding the Community competence to adopt criminal offences rr Iand sanctions. However, things changed significantly by the recent Court ruling l in the so-called environmental crime case (involving the framework decision on environmental crime mentioned above), where the Court looked at the possibility of adopting criminal law on offences and sanctions in the first pillar. This chapter will focus on the impact of this judgment on the Community competence in criminal matters. The content of the judgment will be analysed, and the reactions of the institutions and member states will be highlighted. The analysis will also take into account recent judicial developments in the EU (on the ship-source pollution case which deals with a subject-matter very much similar to the environmental crime case) and explore the potential consequences of the Reform Treaty on the competence of the Community/Union in defining criminal offences and imposing criminal sanctions. The Environmental CrimeCase! r? y Cl 155The Competence Question: The European Community and Criminal Law 3 Paragraph 20. 4 Denmark, Germany, Greece, Spain, France, Ireland, the Netherlands, Portugal, Finland, Sweden and the United Kingdom. This demonstrates the sensitivity that member ~ 'I' states (and indeed "old" member states in this case) have towards extending Community D 0 competence to criminal law. 5 With the exception of the Netherlands who supported the Council but via a different reasoning. 6 Paragraph 26. 7 Paragraph 27. 8 Paragraphs 28 and 29. 9 Paragraphs 31 and 32. 10 Paragraph 38. 1I Paragraph 39. 12 Paragraph 41. the basis of member states' duty of loyal cooperation and the general principles of effectiveness and equivalence.' _ The Council, supported by no fewer than 11 member states," opposed this view. TheCo-~ncllin(rthe·vastm-a]Or ltY- 6T ihe-member statesS-argued that as the law currently stands, the Community does not have power to require member states to impose criminal penalties in respect of the conduct covered by the framework decision.? Not only is there no express conferral of power in that regard, but, given the considerable significance of criminal lawfor the sovereignty of member states, there are no grounds for accepting that this power can have been implicitly transferred to the Community at the time where substantive competences, such as those exercised under article 175 TEC, were conferred on it.7 Moreover, articles 135 TEC and 280 TEC, which expressly reserve to the member states the application of national criminal law and the administration of justice, confirm that interpretation, which is also borne out by the fact that the Treaty on European Union (TEU) devotes a specific title to judicial cooperation in criminal matters, which expressly confers on the European Union competence in criminal matters." Finally, the Council argued, the Court has never obliged member states to adopt criminal penalties and legislative practice is in keeping with that interpretation." In a landmark ruling, the Court annulled the framework decision. The Court began its findings by an examination of the implications of a.!:.~icle 47 TEU for ~~iI!!~!:pj.1.l~L.2~~pce concerning the issue in question. It noted that article 47 TEU (and article 29 TEU) dictate that nothing in the TEU is to affect the EC Treaty," adding that it is the task of the Court to ensure that third pillar acts do not encroach upon the powers conferred by the EC Treaty on the Community. II The Court then focused on the protection of the environment as a Community f/ objective and noted that ~ll.yi[Q.n.m..~J:lJ'lLprotection constitutesoneof the essential '( ./ objectives oCl~ CO.!!J.munity.12 The Court reiterated its case-law according to which the choice of legal basis must rest on objective factors which are amenable f'"n c-. to judicial review, including in particular the aim and the content of the measure L 0 Security versusJustice? I 2 This section is based on the relevant part of Mitsilegas 2006a, op. cit. _____Paragraph 19 of thejudg!.11~~.: 154 The European Commission decided to react to the Council's choice to adopt criminal legislation in matters deemed to be related to the achievement of Community objectives by challenging the legality of the adoption of the relevant third pillar law. This has thus far led to the intervention by the Court of Justice in a landmark judgment regarding the adoption of the framework decision on environmental crime, Case C-176/03, Commission v. Council, 13 September 2005, a ruling with major implications for EU criminal and constitutional law (for case commentariessee inter alii-Tobler2006; White 2006; see-also LabayIe 2006). The parties and intervenants in the case rehearsed to a great extent the two diametrically opposed views on the existence of Community competence in criminal matters. The_~~ll1ll1issiQ1l.(~llPP-.9rt~d by !4~ J:<:uropean Parliament), argued that the framework decision should be annulle£ ii· should have been adopted under the first p'ill~r,_~§_ tl:!<;: protectionof the..environment is ...'l..f!r.§t pillar objective. The Commission argued that the Community has competence to prescribe criminal penalties for infringements of Community environmental protection legislation if it takes the_viewthat.!ha.tjs ~.E~~c~~s~ry.E!~ans_~~psurin~ JhiJ.Uh~J~gi;;l'!tion is ~ff<;:~Jive __ with the harmonization of national criminal law being designed to be an aid to the Community policy in question.? The Commission also supported first pillar criminal lawcompetence in this context on instruments (see the framework decision on environmental crime); and the nonadoption by the Council of first pillar proposals by the Commission (seethe 2001 proposal for a fraud directive) (see Mitsilegas 2006a; Vervaele 2006). r Traditionally, the European Court of Justice (whileaccepting that Community law may have an impact on national criminal law) had not given any express indication regarding the Community competence to adopt criminal offences rr Iand sanctions. However, things changed significantly by the recent Court ruling l in the so-called environmental crime case (involving the framework decision on environmental crime mentioned above), where the Court looked at the possibility of adopting criminal law on offences and sanctions in the first pillar. This chapter will focus on the impact of this judgment on the Community competence in criminal matters. The content of the judgment will be analysed, and the reactions of the institutions and member states will be highlighted. The analysis will also take into account recent judicial developments in the EU (on the ship-source pollution case which deals with a subject-matter very much similar to the environmental crime case) and explore the potential consequences of the Reform Treaty on the competence of the Community/Union in defining criminal offences and imposing criminal sanctions. fl it is not clear whe.ther t.he judgrnen..t has established.in, p..rinciP. le that the Community \ may, under certam circumstances, have competence in the field of criminal law in C general , oL .!..hat i.Li?..limitedJo environmental crimeonly While the second case is_ _~ig~ly u~!i~~y, gl!.~sti2!1.? regl!~di.!!K_!h,~ extent and scopeof Community competence __in ,criminaL.!p..'!.tte!~still remain, In particular, it is not clear whether Community Shortly after the environmental crime judgment, the Commission published a communication arguing for a recasting of a number of existing EU measures and proposals, while also stating that it would apply the Court's test in future legislative proposals it would table (Commission 2005 . The Commission interp~ted the Court's ruling ?.!:.~adly, arguing that from the point of view of subject matter, in addition to environmental protection the Court's reasoning can therefore be applied to all Community policies and freedoms which involve binding legislation withwhich Zri n11nalpenafiies shoufdbe associated in order to ensure their effectiveness. (Commission 2005, para. 8) The Competence Question: The European Community and Criminal Law 157 competence in criminal law is limited to the definition of criIlliIl.'lLoffense,sor_extend,s Wf ...J!!.~J..~_the i~osition and,p.!ecj~~~efini!i.on of cri!J:ljl1,alsaI1~tion.s, The Court mention s ,~ o that, while the annulled framework decision criminalises cond uct which is particularly detrimental to the environment, it leaves to the member states the choice of the criminal penalties to apply. It is not clear however if this means that the Community is granted powers to criminali se only or also to impose criminal sanctions, at least in the environmentalcnme field. Itseems'paradoxical however- and potentially incoherentto confer competence to define criminal offenses and impose the criminalisation of certai n types of conduct but leave the choice of the sanctions to member states, as sanctions would inevitably be criminal. Moreover, the imposition of a criminalisation requirement to member states in the first place (which, under the qualified majority , \~i tJ voting arrangements of the first pillar may be outvoted in such a measure) arguably T constitutes a greater challenge to State sovereignty and the exercise of power in the cJ ~ criminal law sphere than the dictation of the imposition of specificcriminal sanctions. (Mitsilegas 2006a, 307-8)18 18 A further issue which is unclear is whether EC competence extends only to the achievement of essential Community objectives and if yes, what constitutes such an objective. Reactions to the Court's Judgment on Environmental Crime According to the Commission, the Court's ruling clarified that criminal law provisions required for the effective implementation of Community law are a matter for the first pillar, b;f~ngm~as~res adoPi~d-under a dual legal basis \, _il]_~oth fir~t/thi~ pilla~.J.9 an end-with the Commission proposing aquick- o0 procedure of recasting existing texts it deems affected by the environmental crime judgment; third pillar legislation would only cover measures related to police and judicial cooperation in criminal matters more broadly (Commission 2005, y ara. 11). The instruments which according to the Commission were candidates Io'ii'e7i"sting can be found in the annex to the communication and include mostl \'7 categories of failed Commission first pillar action in criminal law referred to in the ! introduction: parallelfirst/third pillar instruments such as those on the facilitatio1}7 . rof unauthorized entry, transit and residence ; measures adopted in the third pillarl ,. (obviously the environmental crime instrument); and measures which had n01 ~ ", / Security versus Justice?156 and stated that the aim is the protection of the environment and the content particularly serious environmental offences.13 The essential character of environmental protection as a Community objective is crucial for determining whether criminal law can be used to achieve this objective in the Community pillar. Accor:~ing--.t(Uhe Court" whil~'!La r g~I1eraLrllJ~,-!!either crimi!.!.'!Il~"Y_,!!or the-Il:ILes..of criminal procedure fall within , ~~co!!!p~tence, Jhi~ ..d9~s not prevent the EC legislature, when the application or'- '_iOoQCeffective, proportionate and diss~asi~e criminaTpenaltTesby the,competentY\7 n~tion. ~t.a~tho~ili£~1?~_~..?senti..'!lf!l~~_S.u~<:,f9r_~()Q1_~~g!1g~~~.i.~lJ..~~~~.i,ronment~1 y of~Qc~s, fro!!!..@ki.Dg B!.easl!r~s_which relate to the criminal law of the member o 0 states which it considers necessary in order to ensure that !he ~ules v:..h~.!:)tJays _ down on environmental protection are fully effective,14 The Court found that articles 1 to 7 of the framework decision (which relate to the environmental crime offences) have as their maif!,purpose the protection of the environment and they could have been ro erl)' a competence. and legal persons (but, unlike the intellectual property rights proposal, _no provisions on criminatRrQcedure); and a directive on sanctions against employers of illegally staying third-country nationals.P The proposed legal basis is article 63 (3) (b) TEC (measures on illegal immigration and illegal residence) . The main avenue of enforcement of emp loyers' duties under the directive appear to be administrative sanctions. However, the draft directive also provides for the criminalization of serious cases of non-compliance with its provisions and introduces criminal sanctions for such cases-" 25 COM (2007) 249 final, Brussels, 16 May 2007. 26 Ibid. articles 10-11.Seealso the specificprovisions on the liabilityof legal persons in articles 12- 13. 27 The Justice and Home Affairs Counci lof 5-6 October 2006noted in this context that criminal law is considered as a means of last resort, and that further scrutiny is needed regarding the need for criminal measures on the EU level in order to protect intellectual property rights. Council doe. 13068/06 (Presse 258), 22. The Ship-Source Pollution Case Further clarification on the scope of Community crimi nal law competence has been expected from the Court of Justice on the shiI)-Sourc~ pollution cas..e. The __ case is very similar to the one on environmental crime, with the Commission challenging the validity of a framework decision on ship-source po llution, arguing that it should have been adopted under the first pillar. It is indicative of the constitutional significance of the case, and the strong views of member , ( .. ' ..... \ " .\. Security versus Justice?158 19 Doe. 6077/06 (Presse 38), 10. For a summary of reactions in the Council, see also Council doe. 13103/06, Brussels, 22 September 2006. 20 This states that "the Council, acting unanim ously on the initiative of the Commission or a Member State, and after consulting the Europea n Parliament, may decide that action in areas referred to in article 29 [the umbrella provision for the third pillar] shall fall under Title IV of the Treaty establishing the European Community, and at the same time determine the relevant voting conditions relating to it. It shall recommend the member states to adopt that decision in accordance with their respective constitutional requirements." 21 SeeHouseof Lords European Union Committee, The Criminal Law Competence of the EC: Follow-up Report, 11th Report, session 2006-07, HL Paper 63. 22 COM (2006) 168 final, Brussels, 26 April 2006. 23 Articles 6-8 of the Commission proposal. 24 COM (2007) 51final, Brussels 9 February 2007. ~0 -;- , vc."",J"'"' \...- .\. J l~ been adopted (such as the fraud directive). However, the reaction by member states to the Commission communication has been rather sceptical, with the February 2006 Justice and Home Affairs Council adopting only a procedure for the examination of future Commission legislative proposals containing provisions on criminal law.19 The Commission sought to enhance further the Community's competence in criminal matters by putting forward in 2006-and against the backdrop of the "freezing" of the ratification process of the Constitutional Treaty a proposal for moving third pillar matters to the first pillar by using the so-called "passerelle" provision of article 42 TEU.2o However, member states again appeared rather sceptical to the Commission's initiative-by the end of 2006 the debate was deemed to be concluded against the use of article 42 TEU.21 Following its Communication reacting to the Court's environmental crime ruling, and notwithstanding the cautio us reaction by the Co uncil and the passerelle setback, the Commission tabled three major first pillar proposals \( involving Community action on the definition of criminal offences and the imposition of criminal sanctions-all of which are currently under negotiation. () I These are: A directive on criminal measures aimed at the enforcement of intellectual l;' \ property righta? The legal basis of the proposal is article 95 TEC (on the internal market) and contains not only detailed provisions on criminal'--- sanctions,b,=!!~so.provisions on confiscation,joint investigation teams and the initiation of criminal pro~e~dings23=-something that constitutes a very broad - interpretation-of the scope of Community competence and which arguably falls outside Community criminal law competence as defined by the Court; a directive on the protection of the environment through criminal law.24 The pro posal addresses specifically the Court's ruling on environmental crime, with the Commission aiming at recasting the proposal in the light of its interpretation of the judgment. The legal basis of the proposal is article 175(I) TEC on environmental protection. The proposal includes detailed definitions of offences and detailed provisions on criminal sanctions, both for natural 159The Competence Question: The European Community and Criminal Law _ IDthe IjghtofJhe_t!.Dcertain.ty as. to tjle_precisey~t~l1t_QLC:_QU:U:!!llnity criminal law competence following the Court'sjudgment on the environmental criJB~5!!§e, it remains to be seenw het her their finaCrorm and content willdepart substantially from the CommIssio n's proposals. The-debate has already been focusing on the cOnfent of some of these proposals, in particular the extent of criminalization and the levels of proposed criminal sanctions. It is also interesting to look at the legal bases of the proposals- the protection of the internal market and the environment, and action against illegal immigration- and link them with the relevant objectives of the Community in order to address the question on whether these objectives constitute "essential" objectives justifying the employment of Community criminal law for their achievement. These questions of competence, however,cannot be disassociated with questions of the necessity of criminalization and severity of the criminal sanction envisaged. On both the intellectual property rights-? and the employers' sanctions proposals (see Carrera and Guild 2007), concerns have been raised regarding the suitability of the criminal law to regulate the matter. Criminalization may not always be necessary, but it may be used to IV strengthen the case-and create precedents-for a Community criminal law 't:> competence. and legal persons (but, unlike the intellectual property rights proposal, _no provisions on criminatRrQcedure); and a directive on sanctions against employers of illegally staying third-country nationals.P The proposed legal basis is article 63 (3) (b) TEC (measures on illegal immigration and illegal residence) . The main avenue of enforcement of emp loyers' duties under the directive appear to be administrative sanctions. However, the draft directive also provides for the criminalization of serious cases of non-compliance with its provisions and introduces criminal sanctions for such cases-" 25 COM (2007) 249 final, Brussels, 16 May 2007. 26 Ibid. articles 10-11.Seealso the specificprovisions on the liabilityof legal persons in articles 12- 13. 27 The Justice and Home Affairs Counci lof 5-6 October 2006noted in this context that criminal law is considered as a means of last resort, and that further scrutiny is needed regarding the need for criminal measures on the EU level in order to protect intellectual property rights. Council doe. 13068/06 (Presse 258), 22. The Ship-Source Pollution Case Further clarification on the scope of Community crimi nal law competence has been expected from the Court of Justice on the shiI)-Sourc~ pollution cas..e. The __ case is very similar to the one on environmental crime, with the Commission challenging the validity of a framework decision on ship-source po llution, arguing that it should have been adopted under the first pillar. It is indicative of the constitutional significance of the case, and the strong views of member , ( .. ' ..... \ " .\. Security versus Justice?158 19 Doe. 6077/06 (Presse 38), 10. For a summary of reactions in the Council, see also Council doe. 13103/06, Brussels, 22 September 2006. 20 This states that "the Council, acting unanim ously on the initiative of the Commission or a Member State, and after consulting the Europea n Parliament, may decide that action in areas referred to in article 29 [the umbrella provision for the third pillar] shall fall under Title IV of the Treaty establishing the European Community, and at the same time determine the relevant voting conditions relating to it. It shall recommend the member states to adopt that decision in accordance with their respective constitutional requirements." 21 SeeHouseof Lords European Union Committee, The Criminal Law Competence of the EC: Follow-up Report, 11th Report, session 2006-07, HL Paper 63. 22 COM (2006) 168 final, Brussels, 26 April 2006. 23 Articles 6-8 of the Commission proposal. 24 COM (2007) 51final, Brussels 9 February 2007. ~0 -;- , vc."",J"'"' \...- .\. J l~ The Opinion of the Advocate General states in this context, that no fewer than 20 member states intervened against the Commission and in favor of the Council which argued that the third pillar legal basis was appropriate.P , I161The Competence Question: The European Community and Criminal La w the principles of subsidiarity, attributed powers and proportionality; the particular nature and necessary coherence of criminal law; the margin of appreciation to be left for the member states ; and the system set up by the Treaty on the European Union which would be undermined if the arguments of the Commission were upheld." with regard to the level and type of penalties to be imposed. The se provisions could not have been adopted under the first pillar-if the environmental crime case were to be interpreted along the lines advocated by the Commission, Title VI of TEU would largely be deprived of practical effect.v A similarly narrow interpretation of th e environmental crime case was provided by the member states. In their view, th_~mIili~dJ::;Qrpmunity compJ:~.terr<;;..e..1 " I ! to legislate on criminal law matters is confined to measures which are '.'necessary:' o~ (absolutely) "essential" for combating serious environmental offences-adding that such competence does not extend beyond the field of environmental protection to another common policy such as the transport policy at issue and in any event ~xch:!Qe~h~...!!!.Q.ni~a!iS)ll of the type and level of penalties. as laid down in the framework decision. " Member states also put forward a number of arguments indicative of their broader concern of loss of sovereignty in criminal matters related to Member states also argued that article 47 TEU is intended to lay down a clear delimitation of competences between the first and the third pillars but not to establish that the former has primacy over the latter." The AdvocateG~neral recommends that the Ship-source pollution framework decision be annulled, as a number of its provisions (those pertaining to the - I crimina lization of ship-source pollution but interestingly not those imposing specific penalties) could have been adopted in the first pillar under a transport legalbasis.'?The reasoning behind this can broadly be divided into four broad themes: his interpretation of article 47 TEU in the context of the case; his interpretation of the contours of Community criminal law competence in the light of the debate post the environmental crime judgment of which objectives of the Community? "\ _ justifyJirsl pillar action in criminal matters; his interpretation of the precise scope 1 of Community criminal law competence and in particular whether it includes the imposition of criminal sanctions; and his comments on the relationship between Community law and criminal law. The Advocate General started with a comment-response to member states' views regarding the relationship between the first and the thi rd pillar. He interpreted article 47 TEU in a manner affirming the importance of Community law, noting that article 47 TEU is not designed merely to ensure that nothing under the EU Treaty affects or runs counter to existing substantive provisions \ '1 35 Paragraph 39. ",I I I 36 Paragraph 41. 37 Paragraph 42. -', e.. ' ,,"'38 Paragraph 43. 39 Paragraphs 128-139. ( - \1\ ~1 ( Security versus Justice? Paragraph 28. Ibid. Paragraph 36. Paragraph 38. 160 28 Case C-440/05, Commission v. Council. 29 Opinion delivered on 28 June 2007. 30 Paragraph 27. A similar viewwas put forward by the European Parliament, which stressed the similarities with the environmental crime case and argued that the framework deci sion in question is also concerned with environmental protection (pa ragraphs 32-35). 31 32 33 34 The views of the parties can be found in the opinion of Advocate General Mazak.i? The Commission argu ed that articles I to 10 of the framework decision-could have been adopted on the basis of article 80 (2) TEC relating to the Community Cl common transport policy and that consequently, the entire framework decision b (due to its indivisibility) infringes article 47 TEU.3o In a broad interpretation of the environmental crime judgment, the Commission is of the view that principles (11that the Court laid in its environmental crime judgment apply "in their enti rety i to other Community 'policies" such as the transport policy, arguing that the v importance of environmental protection in the Community and its particular characteristics had in fact no decisive bearing on the environmental crime decision in principle." Accordin to the Co~~issio~, the Community legislature may provide for criminal measures in so far as necessary to ensure the full effectiveness of Community rules and regulations. The Community is therefore according..!.Q the Commission comp~~_I!!-!Q-,kfine the l ype anQlevel..Qtpe!1C!ltjes iLand in so far as it is established that this is necessary to ensure the full effectiveness of a Community policy.-? The Council on th e other hand defended th e cho ice of the third pillar instrument (supported by all intervening member states) and denied that criminal law measures should have been adopted in the first pillar under article 80 (2) ~ ITEe. The Council's strategy was primarily to attempt to differentiate between j the ship-source pollution and the environmental crime cases. According to the Council, it is undisputed article 80 (2) TEC (on transport) is the correct legal basis for the adoption of the first pillar directive, even if it also pursues objectives related to the environmental protection. P The common transport policy lacks the specific characteristics and importance of environmental protection; moreover, the Community powers to act on transport matters depends on the decision of the Council.34 In the alternative, the Council argued that the provisions of the ship-source pollution framework decision differed from those of the third pillar \ measure on environmental crime in that they were more detailed in particular The Opinion of the Advocate General states in this context, that no fewer than 20 member states intervened against the Commission and in favor of the Council which argued that the third pillar legal basis was appropriate.P , I161The Competence Question: The European Community and Criminal La w the principles of subsidiarity, attributed powers and proportionality; the particular nature and necessary coherence of criminal law; the margin of appreciation to be left for the member states ; and the system set up by the Treaty on the European Union which would be undermined if the arguments of the Commission were upheld." with regard to the level and type of penalties to be imposed. The se provisions could not have been adopted under the first pillar-if the environmental crime case were to be interpreted along the lines advocated by the Commission, Title VI of TEU would largely be deprived of practical effect.v A similarly narrow interpretation of th e environmental crime case was provided by the member states. In their view, th_~mIili~dJ::;Qrpmunity compJ:~.terr<;;..e..1 " I ! to legislate on criminal law matters is confined to measures which are '.'necessary:' o~ (absolutely) "essential" for combating serious environmental offences-adding that such competence does not extend beyond the field of environmental protection to another common policy such as the transport policy at issue and in any event ~xch:!Qe~h~...!!!.Q.ni~a!iS)ll of the type and level of penalties. as laid down in the framework decision. " Member states also put forward a number of arguments indicative of their broader concern of loss of sovereignty in criminal matters related to Member states also argued that article 47 TEU is intended to lay down a clear delimitation of competences between the first and the third pillars but not to establish that the former has primacy over the latter." The AdvocateG~neral recommends that the Ship-source pollution framework decision be annulled, as a number of its provisions (those pertaining to the - I crimina lization of ship-source pollution but interestingly not those imposing specific penalties) could have been adopted in the first pillar under a transport legalbasis.'?The reasoning behind this can broadly be divided into four broad themes: his interpretation of article 47 TEU in the context of the case; his interpretation of the contours of Community criminal law competence in the light of the debate post the environmental crime judgment of which objectives of the Community? "\ _ justifyJirsl pillar action in criminal matters; his interpretation of the precise scope 1 of Community criminal law competence and in particular whether it includes the imposition of criminal sanctions; and his comments on the relationship between Community law and criminal law. The Advocate General started with a comment-response to member states' views regarding the relationship between the first and the thi rd pillar. He interpreted article 47 TEU in a manner affirming the importance of Community law, noting that article 47 TEU is not designed merely to ensure that nothing under the EU Treaty affects or runs counter to existing substantive provisions \ '1 35 Paragraph 39. ",I I I 36 Paragraph 41. 37 Paragraph 42. -', e.. ' ,,"'38 Paragraph 43. 39 Paragraphs 128-139. ( - \1\ ~1 ( Security versus Justice? Paragraph 28. Ibid. Paragraph 36. Paragraph 38. 160 28 Case C-440/05, Commission v. Council. 29 Opinion delivered on 28 June 2007. 30 Paragraph 27. A similar viewwas put forward by the European Parliament, which stressed the similarities with the environmental crime case and argued that the framework deci sion in question is also concerned with environmental protection (pa ragraphs 32-35). 31 32 33 34 The views of the parties can be found in the opinion of Advocate General Mazak.i? The Commission argu ed that articles I to 10 of the framework decision-could have been adopted on the basis of article 80 (2) TEC relating to the Community Cl common transport policy and that consequently, the entire framework decision b (due to its indivisibility) infringes article 47 TEU.3o In a broad interpretation of the environmental crime judgment, the Commission is of the view that principles (11that the Court laid in its environmental crime judgment apply "in their enti rety i to other Community 'policies" such as the transport policy, arguing that the v importance of environmental protection in the Community and its particular characteristics had in fact no decisive bearing on the environmental crime decision in principle." Accordin to the Co~~issio~, the Community legislature may provide for criminal measures in so far as necessary to ensure the full effectiveness of Community rules and regulations. The Community is therefore according..!.Q the Commission comp~~_I!!-!Q-,kfine the l ype anQlevel..Qtpe!1C!ltjes iLand in so far as it is established that this is necessary to ensure the full effectiveness of a Community policy.-? The Council on th e other hand defended th e cho ice of the third pillar instrument (supported by all intervening member states) and denied that criminal law measures should have been adopted in the first pillar under article 80 (2) ~ ITEe. The Council's strategy was primarily to attempt to differentiate between j the ship-source pollution and the environmental crime cases. According to the Council, it is undisputed article 80 (2) TEC (on transport) is the correct legal basis for the adoption of the first pillar directive, even if it also pursues objectives related to the environmental protection. P The common transport policy lacks the specific characteristics and importance of environmental protection; moreover, the Community powers to act on transport matters depends on the decision of the Council.34 In the alternative, the Council argued that the provisions of the ship-source pollution framework decision differed from those of the third pillar \ measure on environmental crime in that they were more detailed in particular / of Community law-it is intended rather also to preserve the powers conferred I on the Community as such.t? The TEU "meant only to add" to the fields of OCommunity activity." He categorically stated that Contrary to the view expressedbycertain Governments,article47 EU thus establishes the "primacy" of Community 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 in so far as it provides an appropriate legal basis for the purposes of the action envisaged.F 163The Competence Question: The European Community and Criminal Law the field of environmental protection would thus be arbitrary; since ComglU!!!!Y corn etence in criminal matters iL'1~.ces.sJ:trY-t~;Len~ure.Jhe_~(fec.!Ly'elless ofl c.\.\.. Community law,,"it must in principle also exist in relation to any other Community policy area (such as transport), subject, of course, to the limits set by the Treaty provisions providing the substantive legal basis in question.t"? Using effectiveness, but also alluding to the special nature of criminal law, the Advocate General thus argues for the extension of Community criminal law competence not only to achieve any Community objective, but to ensure the effectiveness of all Community policy areas within the limits set out by the Treaty. He then went on to comment on the .scQ,~. oLCommunity criminal law competence, an issue that was also central in the environmental crime case. The Advocate General follows the Court's approach in the latter case that while the Community is entitled to constrain member states to impose criminal penal!i~ __C1:!l<:l tgpIes.g:il>_eJ~a..Uh~y be.ef[ectiye, Prop.Q.IJiQm!tellrLd-iJ.is..s.l@Siv~,J21J.LQ~x.O.Ild thi!t,j! i~_rlO.t emP9..FereQ..to specify the Renalties to be imposesI.50 The Community does not have the power to impose criminal penalties itself, but rather the power to require member states to provide, within their respective penal systems, for certain forms of conduct to be classified as criminal offences as a means of upholding the Community legal order.~l .The.1imitsJoJhe_S::_o!!!munity's powersin tl}is.£2.1!texl II' ~I~Jus.t.ifiei_~r:!_!~~g!:oul1_d~ of .s,ubsidiarity and preserving the coheregcc,.of the / I. national penal systems.52 While having emphasized the foundation of Community criminal law '. competence on the need to ensure the effectiveness of Community law, the Advocate General concludes that part of his opinion with a discussion of the potential subordination of criminal law to the effectiveness of Community law.53 He accepts that effectiveness is an imprecise criterion on the basis of which to establish criminal law competence and does not encapsulate entirely the essence of criminal law.54 Having broadened Community competence in criminal matters by extending it potentially to any Community policy, he now tries to place some limits by stating that the necessity of Community criminal law does not stem only from the objective criterion of the existence of a legal basis in the EC Treaty, but also from a degree of judgment by the institutions involved." Moreover, the Advocate General accepts that it is not ideal for Community criminal law to be 49 Paragraph 99. However, the Advocate General further adds in a different part of the opinion that the Community has criminal law competence whenever criminal law measures are necessaryto ensure the full effectivenessof Community law and essential to combat serious offences in a particular area, paragraph 112. 50 Paragraph 103. 51 Paragraph 104. 52 Paragraphs 108 and 106 respectively. 53 Paragrap hs 114-1 21. On the issue of the subordination of criminal law to Community law see Mitsilegas2008. 54 Paragraphs 105 and 108 respectively. 55 Paragraph 119. \ '. , \ '. \, Security versus Justice? 40 Paragraph 50, emphasisadded.Accordingto the AG, that isconfirmed byarticle 29(1) TEU which expresslyprovides that third pillar provisions are "without prejudice to the powers of the European Community" (paragraph 51). 41 Paragraph 55. 42 Paragraph 53. 43 Paragraph 77. 44 Paragraph 89. 45 Paragraph 94. 46 Paragraph 95. 47 Paragraph 96. 48 Paragraph 97. 162 \ ' environmental protection is not the only essential objective or policy area of the Community and it is difficult to distinguish it on that account from the other Community objectives and activitiesreferred to in articles 2 EC and 3 EC, such as the establishment of an internal market characterised by the fundamental freedoms, the ,A common agricultural policy or the common rules on cornpetition.f ( '\ ~ (' ( . . According to the Advocate General, since criminal law is a barometer of yr: the importance attached by_'! community to a legal good 9r value, to single out environmental protection in such a way would not do justice to the identity of the Community/f Moreover, environmental protection is not the only "horizontal" Community matter-gender equality, non-discrimination or public health are further examples'? Furthermore, the Advocate General held that it is not feasib le ~ ,- to argue that competence should be limited to the area of the environment since it \ , is a corollary of the effectiveness of Community law." To reserve competence in'Co - _ . ._The Advocate General went on to examine specifically the relationship between criminal law and Community law. He noted that the Court's ruling on environmental crime was qualitatively significant but not incomprehensible'P-> motivated fundamentally by the need to ensure the full effectiveness of Community law." The Advocate General then proceeded to examine the question of the nature of the Community objective whose attainment justifies Community action in criminal matters-in p'articula.Lwhet~r EC criminal law competence is limit~_a to the Rrot~c:J~on of the en,::ironme!:1t. He interpreted Community competence broadly, starting from the premise that / of Community law-it is intended rather also to preserve the powers conferred I on the Community as such.t? The TEU "meant only to add" to the fields of OCommunity activity." He categorically stated that Contrary to the view expressedbycertain Governments,article47 EU thus establishes the "primacy" of Community 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 in so far as it provides an appropriate legal basis for the purposes of the action envisaged.F 163The Competence Question: The European Community and Criminal Law the field of environmental protection would thus be arbitrary; since ComglU!!!!Y corn etence in criminal matters iL'1~.ces.sJ:trY-t~;Len~ure.Jhe_~(fec.!Ly'elless ofl c.\.\.. Community law,,"it must in principle also exist in relation to any other Community policy area (such as transport), subject, of course, to the limits set by the Treaty provisions providing the substantive legal basis in question.t"? Using effectiveness, but also alluding to the special nature of criminal law, the Advocate General thus argues for the extension of Community criminal law competence not only to achieve any Community objective, but to ensure the effectiveness of all Community policy areas within the limits set out by the Treaty. He then went on to comment on the .scQ,~. oLCommunity criminal law competence, an issue that was also central in the environmental crime case. The Advocate General follows the Court's approach in the latter case that while the Community is entitled to constrain member states to impose criminal penal!i~ __C1:!l<:l tgpIes.g:il>_eJ~a..Uh~y be.ef[ectiye, Prop.Q.IJiQm!tellrLd-iJ.is..s.l@Siv~,J21J.LQ~x.O.Ild thi!t,j! i~_rlO.t emP9..FereQ..to specify the Renalties to be imposesI.50 The Community does not have the power to impose criminal penalties itself, but rather the power to require member states to provide, within their respective penal systems, for certain forms of conduct to be classified as criminal offences as a means of upholding the Community legal order.~l .The.1imitsJoJhe_S::_o!!!munity's powersin tl}is.£2.1!texl II' ~I~Jus.t.ifiei_~r:!_!~~g!:oul1_d~ of .s,ubsidiarity and preserving the coheregcc,.of the / I. national penal systems.52 While having emphasized the foundation of Community criminal law '. competence on the need to ensure the effectiveness of Community law, the Advocate General concludes that part of his opinion with a discussion of the potential subordination of criminal law to the effectiveness of Community law.53 He accepts that effectiveness is an imprecise criterion on the basis of which to establish criminal law competence and does not encapsulate entirely the essence of criminal law.54 Having broadened Community competence in criminal matters by extending it potentially to any Community policy, he now tries to place some limits by stating that the necessity of Community criminal law does not stem only from the objective criterion of the existence of a legal basis in the EC Treaty, but also from a degree of judgment by the institutions involved." Moreover, the Advocate General accepts that it is not ideal for Community criminal law to be 49 Paragraph 99. However, the Advocate General further adds in a different part of the opinion that the Community has criminal law competence whenever criminal law measures are necessaryto ensure the full effectivenessof Community law and essential to combat serious offences in a particular area, paragraph 112. 50 Paragraph 103. 51 Paragraph 104. 52 Paragraphs 108 and 106 respectively. 53 Paragrap hs 114-1 21. On the issue of the subordination of criminal law to Community law see Mitsilegas2008. 54 Paragraphs 105 and 108 respectively. 55 Paragraph 119. \ '. , \ '. \, Security versus Justice? 40 Paragraph 50, emphasisadded.Accordingto the AG, that isconfirmed byarticle 29(1) TEU which expresslyprovides that third pillar provisions are "without prejudice to the powers of the European Community" (paragraph 51). 41 Paragraph 55. 42 Paragraph 53. 43 Paragraph 77. 44 Paragraph 89. 45 Paragraph 94. 46 Paragraph 95. 47 Paragraph 96. 48 Paragraph 97. 162 \ ' environmental protection is not the only essential objective or policy area of the Community and it is difficult to distinguish it on that account from the other Community objectives and activitiesreferred to in articles 2 EC and 3 EC, such as the establishment of an internal market characterised by the fundamental freedoms, the ,A common agricultural policy or the common rules on cornpetition.f ( '\ ~ (' ( . . According to the Advocate General, since criminal law is a barometer of yr: the importance attached by_'! community to a legal good 9r value, to single out environmental protection in such a way would not do justice to the identity of the Community/f Moreover, environmental protection is not the only "horizontal" Community matter-gender equality, non-discrimination or public health are further examples'? Furthermore, the Advocate General held that it is not feasib le ~ ,- to argue that competence should be limited to the area of the environment since it \ , is a corollary of the effectiveness of Community law." To reserve competence in'Co - _ . ._The Advocate General went on to examine specifically the relationship between criminal law and Community law. He noted that the Court's ruling on environmental crime was qualitatively significant but not incomprehensible'P-> motivated fundamentally by the need to ensure the full effectiveness of Community law." The Advocate General then proceeded to examine the question of the nature of the Community objective whose attainment justifies Community action in criminal matters-in p'articula.Lwhet~r EC criminal law competence is limit~_a to the Rrot~c:J~on of the en,::ironme!:1t. He interpreted Community competence broadly, starting from the premise that 165The Competence Question: The European Community and Criminal Law The Court's Ruling 57 Judgment of 23 October 2007, paragraphs 53 and 54 respectively. 58 Paragraphs 55 and 58 respectively. 59 Paragraph 59. 60 Paragraph 60. 61 Paragraph 67.The Court also noted that the purpose of the framework decision, according to its pream ble,was to enhance maritime safety and improve protection of the marine environment against ship-source pollution (paragraph 62). 62 Paragraph 68. 63 See also paragraph 66 of the judgment. 64 Paragraph 69. Like the Advocate General, the Court focused on article 4LTf;l,.L£~Jtgarjing point. affirming that it is its task to ensure that acts which, according to the Council, fall l) within the scope of Title VI do not encroach upon the powers conferred by the EC Treaty on the Community-the Court would thus have to look at whether the framework decision affected the Community's competence on transport under article 80 (2) TEC,57 The Court noted first that the common transport policy is one of the foundations of the Community, with the latter having broad legislative powers under this article including powers in the field of maritime transport.58 The : existence of the legislative competence conferred to the Community by article 80 I 1I (2) TEC is not dependent on a decision by the legislature to actually exercise this I. competence.59 Secondly, the Court linked Community transport policy with the 1/ objective of environmental protection . The latter is, according to the Court, one _ oJ the~_ss..entiaLQbje_ctiy.e.s_oLthe_Gommunity_which must, according to article 6 TEC "be integrated into the definition and implementation of [.. .] Community policies and activities" including transport policy.s'' The Court then examined the fra mework decision in this light, asserting that the latter's provisions relate to conduct which "is likely to cause particularly serious environmental damage as a resu lt, in this case, of the infringement of the Community rules on maritime safety.'"! According to the Court, it is alSO] clear that the Council took the view that criminal penalties were necessary to ensure compliance with Community rules on maritime safety.62 In the light of th ese two considerations and the Court's earlier ruling on the environmentalcrime case,63 the Court took the view that articles 2, 3 and 5 of the framework \Cl decision on ship-source pollution, which "are desi gned to ensure the efficacy of the rul es adopted in the field of maritime safety, non-compliance with which may have serious environmental consequences, b re uirin member states to a I J\-'criminal penaltie~o c~rtain forms of condust" are essentially aimed at improving 0 ;';' maritime safety as well as environmental protection and could have been validly adopted on the basis of article 80 (2) TEC. 64 However, the Court noted that ] Community competence in the field does not extend to the determination of the '~'t l - -type and level of crim inal penalties-therefore it does~ot extend to provisions 0 such as articles 4 and 6 of the fra mework decision determining specific levels of--- ------.- -- ---- - - - ----- ~ ~ ;;. \'" \ \, I Security versus Justice? 56 Paragraph 120. 164 considered a mere accessory to the specific Community competences and only a single aspect of the policies involved.56 Advocate General Mazak was faced with the delicate task of balancing the fundamentally different views regarding the extent of Community criminal law competence. In this context, and in the light of the Court's reasoning in the environmental crime judgment , he had to reconcile th e demands of Community law wit h the special characteristics of criminal law, and to clarify the Court's ruling in the light of the various competing interests, in particular the very strong reaction against the expansion of Community criminal law competence by an impressive number of member states. The resu lt has been an opinion where, on man occasions two seQarate and guite distinct narratives not only co-existed, but also merged: the narrative of th~primacy and-~entrality'of~ol})~m!1_nitYJaw and the need. to ensure its effectiveness on the one hand; and the narrative 9f the t:special features of criminal law and its close link with national sovereignty a nd ~ 1..S9C'ietal realiiY~R th'e