Three observations. The political debate triggered by the ruling of the Court of Justice on the competency of the EU to establish a regime of criminal sanctions against infringements of European provisions on the environment (see this column yesterday) is mainly based around two concerns: the risk of a transfer of power from the Member States to the Community institution; the fear that the EU is sliding towards a regime of the "government of judges". It is not my intention to contribute to a legal debate which far exceeds my competencies, and I would just like to make three observations.
The first is that the Court has not stripped the governments of competencies which belong to them. It has merely confirmed the fact that criminal legislation, and its rules of procedure, are a matter for the Member States; however, the European legislator is competent when a system of criminal sanctions is considered indispensable in order to guarantee the full efficiency of Community standards in terms of environmental protection. The "Community method" is then in force, which means that the Council and the European Parliament make a decision, on the basis of a Commission proposal. As the Commission is made up of national ministers, it is quite wrong to imply that the power is being leached from the capital cities by Brussels. The legislator remains the Council, together with the Parliament, reinforcing the democratic nature of European legislation.
Second observation: the ruling of the Court relates to the environment, protection of which constitutes "an essential objective". In its November communication, the European Commission stated that the "scope of this ruling exceeds the field of the environment and targets all Community policies, as well as the fundamental freedoms recognised by the Treaty". It stated the view that seven decisions already taken by the Council (over and above the one cancelled by the Court) were taken on incorrect legal bases and must be changed into directives or other Community acts. The director-general of the legal services of the Council, Jean-Claude Piris, explained to the "Justice and Home Affairs" Council that an assessment of these texts on a case-by-case basis will be necessary (the European Commissioner Franco Frattini agreed), that the ruling of the Court does not clarify everything, and that it will take time to do so.
The Court does not make the law. My third and most important observation is that this is not the first time that the danger of a "government of judges" has been raised. But this always happens in periods of weakness or incorrect functioning in the Community method. When the Community legislator acts in full awareness of its powers, and the Community method is working as it should, the legislation is clear and the Court does not have to make the law. Here is an example relating to a highly controversial and economically important field: the services of general interest. Due to an absence of legal framework (we are at White Paper stage with the Commission on this subject and Green Paper stage on the concessions, which the European Parliament is preparing to debate), Rainer Plassmann, Secretary General of the CEEP, recently said: "Given the lack of legal framework on these issues, we have reached a situation in which the Court of Justice must rule on individual cases and, at the same time, arrive at decisions of principle influencing entire sectors of the services of general interest". He voiced his wish that we will end up with "well-balanced legislation", allowing the providers of these services efficiently to fulfil their missions.
The Court itself has, on several occasions, stressed that it has absolutely no intention of turning into a legislator. Another recent ruling which made waves relates to the tax regime applied in the United Kingdom on losses registered by foreign subsidiaries (the Marks & Spencer case). This ruling is every bit as complicated as its subject: first of all, it states that the UK regime is discriminatory, but that it pursues fiscally legitimate objectives, which may justify this discrimination, but that in fact, it is out of all proportion with the objective pursued. It was criticised by the Court for drawing up its legislation thus, but it is worth highlighting the fact that the matter was not resolved by European provisions; sometime earlier, the Commission had proposed a directive, but this was never adopted. It is for this reason that the Court is obliged to define a few principles of a legislation which does not exist; and, as we saw, it did this most cautiously.
"Summum jus, summa injuria". In any case, the essential element is, for my money, the orientation of the Court, which has, for several years, attached an increasing amount of importance to economic objectives and the economic context, distancing itself from what I had previously described as excessive legality, or legal formalism (which basically means giving more importance to the former than to the substance). It is true that it was pointed out to me, from several quarters, that this "excessive legality" is a false notion, that it does not exist: the law is what it is, all that can be done is to apply it. To this I replied (in this column in the bulletin dated 20 February 2001, carrying the number 7906) by quoting a Cicero maxim: Summum jus, summa injuria, which roughly means that the maximum of justice corresponds to the maximum of injustice. Cicero based this on the example of the King of Sparta, Cleomenes, who agreed a 30-day truce with one of his enemies, only to go and sack their territory at night, as the agreement related only to days and not to nights. Closer to our own time, I can give you two examples of summum jus which hit the headlines. The first related to a judge who overturned the sentences of organised criminals due to tiny irregularities in procedure. After a tremendously successful trial, which port several hundred such criminals in jail, he overturned the court ruling because in some cases, non-regulation rubber stamps had been used (and according to a number of observers, the mistake had been quite deliberate). Scores of murderers and drugs traffickers were set free because of a rubber stamp.
Past history? Not quite, because as recently as the closing months of 2001, a Milan court freed 59 people accused of involvement in "organised crime", because one of the 1600 pages in the arrest warrant had not been printed in the official charge sheet. The instructing judge immediately brought the missing page to the court, together with the floppy disk which proved that this page had existed in the original document; its absence was down to a problem with the printer. But the court declared that the arrest warrant was null and void, and that this could not be remedied after the event. The net result of this is that an investigation which had started in 1997, and broken up a ring responsible for the trafficking of weapons and drugs, had all been in vain. Summum jus, summa injuria.
The evolution of the Court. It is clear that nothing bearing any resemblance to this has ever happened, nor could happen, in Community legal procedures; this is just an attempt on my part to explain the Cicero maxim. The fact remains that the jurisprudence of the Court of Justice has shown that it is evolving. Having, with an admirable efficiency, laid the foundation stones for the Community legal order, the Court has evolved towards a more accentuated taking into consideration of the objectives of European construction. For example, having made the free movement of goods a reality in its Cassis de Dijon ruling, it has been able to bring greater flexibility to the notion of an obstacle to this freedom of movement. One case remains famous. First of all, it ruled that Saturday closing in shops (a practice which is commonplace in a number of German towns and cities) constituted an obstacle to the free movement of goods, because it meant that fewer imported goods could be sold. This, needless to say, was ill-judged, because shop closing times in no way aimed to limit imports to a given country, but simply responded to traditions, a way of life, with social and, in some cases, religious justification. Even so, we then saw an abundance of attacks against all sorts of national legislation which, it was claimed, presented an obstacle to the free movement of goods. It was a dream come true for the lawyers. And then, the Court of Justice had the honesty and political courage to back-pedal. In its Keck/Mithouard ruling of 24 November 1993, it said that, "contrary to what has been decided up to this point", the application of national provisions limiting or banning certain sales methods "is not liable to hinder trade between Member States", on the condition that the same modalities apply to national products. The Court went on to conclude: "these rules, therefore, do not come under the scope of application of article 30 of the Treaty". These come on top of cases already indicated by the Court in 1979 as able to justify possible obstacles: the protection of public health, the effectiveness of fiscal controls, consumer defence and the fairness of commercial transactions.
Over a period of time, the Court extended similar considerations to other fields. In a study on non-economic factors in the jurisprudence of the Court of Justice, Professor Thiébaut Flory (Université de Paris XII) quoted the environment, social issues and culture as long ago as 2001. For example, it is a well-known fact that monopolies are banned, but the Court justified the monopoly on the management of gaming machines in Finland by dint of "objectives of general interest which justify it"; the same goes for certain obstacles to tax-free alcohol imports by "booze cruisers". In the case of cans of beer and other drinks, which cannot be imported into Denmark because they are not recyclable, the Court said that the protection of the environment took priority. In some of these cases, the Court ruled against the opinion of the European Commission. It is only in the field of sport, in my view, that the Court of Justice has not taken sufficient account of the objectives justifying certain restrictions (see this column in bulletin 9105).
The Court ruling of last September, which is behind the political to-do to which I referred yesterday, is, I believe, devoid of the consequences ascribed to it by certain commentators. A few remarks in the press have verged on the ridiculous, and even the immediate declaration of the president of the European Parliament, Josep Borrell, was excessive. The case may be important, but it is not dramatic.
(F.R.)