Commission’s Environmental Crime Proposal

The European Commission has announced that it’s submitting to the EP and Council a proposal for a Directive on environmental crime. This is its reaction to the European Court of Justice’s ruling in the Commission v Council case in 2005.

The case was all about who has power, under what can reasonably be called the European Constitution – the EC and EU Treaties – to lay down common criminal rules and penalties for combating pollution and other environmental crimes. The European Union – the Member States cooperating on police and criminal law matters, under the Treaty on European Union, under rules that effectively sideline the Commission – had adopted a “Framework Decision” requiring all Member http://www.gooakley.com/ States to take European environmental rules seriously, by backing them with criminal sanctions. They did this thinking that only the EU had power to reach into national criminal law systems: the European Community, whose rules give the Commission the key role of initiating legislative proposals, has traditionally been thought of as not having power over national criminal laws.

The Court didn’t agree. The European Community does have competence, it ruled, to lay down common criminal rules across Europe, if it’s necessary to do so to enforce its own rules:

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.

And because the treaties says anything that can be done by the Community should not be done by the Union, the ECJ annulled the Framework Decision. That opened the way to this proposal from the Commission.

I think there is legitimate cause for concern about this. Some people in Britain think this is not new, and feel reassured by the ECJ’s recognition that generally, criminal law is outside EC competence. The Lords EU Scrutiny Committee took some comfort from that in its report on this last year. But I wouldn’t be so reassured. To me, that qualification is exactly the sort of form of words that the ECJ is likely to ignore, for all practical purposes, in future judgments.

I think this is new. Yes, you can argue that we always suspected the Community could do almost anything that genuinely pursues its internal market and other objectives. But then, it was always implicit that Acts of Parliament Ray Ban outlet had to be set aside if they breached European law, but it still came as a shock, and led to a paradigm shift, when the ECJ spelled out that this was the case. I’m not saying this shift is quite in that league, but on a smaller scale I think this, too, is a paradigm shift.

In my view, it follows from the ruling that the Community has power to require – and therefore, the Commission has power to propose – criminal sanctions and penalties wherever these can reasonably be argued to be needed in any area within its competence. Many of these proposals will be difficult for the UK to resist since they will be subject to qualified majority voting, and the ECJ is likely to be very slow to strike them down on the grounds that criminal sanctions aren’t needed.

The only real limit left is that the Commission will only be able to propose criminal laws within its general areas of policy competence. It will not be able to propose “purely” criminal measures tackling, say, terrorism or rape. But it will be able to propose criminal measures in a wide range of economic and social fields such as health and safety, race and discrimination, food safety, to mention just a few. To take a practical example: if BSE broke out again, the Commission would have power to propose a ban on beef on the bone. It wouldn’t be just up to DEFRA, which is the kind of thing we all assumed ten years ago.

So look forward to Commission proposals increasingly including requirements about national criminal law.

The FT reported on this a couple of days ago.