The debate over a number of the Court of Justice's opinions has gone beyond the legal framework and become highly political since a) Austrian Chancellor and President of the European Council Wolfgang Schüssel requested that the subject be debated at a future summit, b) the Justice and Internal Affairs Council indicated that it would look into it and c) MEPs sought a plenary debate. The Court opinion responsible for these reactions is the one of 13 September 2005, that the European Union has the power to introduce legal sanctions against infringements by Member States of European environmental legislation (see EUROPE 9026). The question is not whether such sanctions are appropriate, no Member State questions them, Member States adopted the decision. The question is one of competence. The European Commission asked the Court to annul the inter-governmental decision, deeming that it was up to the EU to deliberate, given that environmental legislation is Community matter. The Court judged in its favour and annulled the Council “decision”, which was to be replaced by a “directive” adopted under Community procedures: proposal from the Commission, Parliament-Council co-decision.
All EU policies are affected. The Commission stressed that the “Community way” had been strengthened, and Parliament President Josep Borrell stated that the powers of the EP had been widened (see EUROPE 9027). Two months later, the Commission adopted a “communication” indicating that the Court's opinion applied to Community policies as a whole (see EUROPE 9075). As a result, it said, other Council “decisions” had been founded on erroneous legal bases and ought to be replaced by EU “directives”, quoting seven decisions that had introduced criminal law measures, to ensure the application of Community law in the areas of industrial property, money laundering, infringements relating to the euro, computer abuse, means of payment fraud, assisting the entry of illegal immigrants, sea pollution. The Commission's proposal is not to amend the Council decisions, but simply to make them into directives, to be proposed by the Commission and approved by the Council and Parliament, without altering the contents, which presupposes a prior undertaking from Parliament and Council not to debate the substance of these texts.
Reactions. The reaction of some governments and a few MEPs was rather negative and concerned. Ministers or government circles spoke of the risks of slipping into “government by judges”, with the Court making the law rather than interpreting and applying it. The very day he assumed Presidency of the European Council, 1st January, Chancellor Schüssel expressed himself in forthright terms in an interview with the Züddeutsche Zeitung. He reproached the Court of Justice for systematically extending Community powers even in areas which were “explicitly excluded from its control in the Treaties” (referring to criminal law) and expressed his intention to raise the subject at the European Council, because “no one should be able to centralise power through European legislation”. Two weeks later, in the Justice and Internal Affairs Council, British, Swedish and Slovenian Ministers voiced fears that some opinionts of the Court could lead to significant transfer of power from Member States to the Community Institutions. The President of that Council, Karin Gastinger, said the opinion of 13 September had sown confusion because of the lack of clarity of the stated principles (see EUROPE 9110). In Strasbourg on 18 January, during the debate on the Austrian Council Presidency, MEP Patrick Louis called on Parliament to debate the powers of the Court and Chancellor Schüssel then told Press that he was not questioning the role of the Court but that wanted balance in its case law (see EUROPE 9112).
The Commission's communication mentioned above was not likely to allay the fears or irritation of a number of governments. According to this communication, the Court opinion stipulated that the EU is the only competent authority in criminal law measures in all areas of Community action - the totality of policies and fundamental liberties recognised in the Treaty.
Tomorrow I shall try to clarify some aspects of this complex and delicate issue. (F.R.)