The parliament of one Member State (France) has deepened the implications of the Court of Justice judgment of 13 September last year on the jurisdiction of the European Community (which are laid down in the EC Treaty and cannot be modified by the EU Treaty) in criminal matters, such that I am now able to give any readers who may be interested some precise legal insight into the matter. This column tackled this subject twice last week (in bulletins 9116 and 9117), dealing with the reactions of the Council Presidency, certain governments and a few MEPs, that is, the fear of a potential transfer of jurisdiction from the national capitals to the EU; the risk of the EU sliding towards becoming a “government of judges”. In the meantime, in France, the “Delegation for the European Union” in the National Assembly has looked into the matter and Assembly member Christian Philip has written a report. Following a discussion, the delegation in question, presided by Pierre Lequiller, approved and last week sent to the National Assembly a resolution containing more in-depth suggestions.
The analysis in the Philip report essentially comes to the following conclusions:
1. The judgment of the Court of Justice extends the European Community's jurisdiction, but subject to strict conditions. The judgment of last September recognises that, in principle, criminal legislation and criminal procedures come under the jurisdiction of the Member States, but considers that the area of the environment is a unique one. In fact, protecting and improving the quality of the environment are among the missions of the EC, and this objective is of a “cross-cutting and fundamental nature”. The Court concludes that the Community legislator can decide on criminal aspects “when the application of effective, proportionate and dissuasive criminal sanctions by the national authorities constitute an indispensable measure in combating serious harm to the environment”, and when these measures are “necessary in order to guarantee the full effectiveness” of European environmental standards.
The rapporteur acknowledges that “the exact scope of this judgment is difficult to assess” and in particular raises the two following questions:
a) is the judgement applicable to areas other than environmental protection? The Court has clearly indicated that criminal matters remain part of the jurisdiction of the Member States, with Community jurisdiction an exception. The Court stressed that the environment is a fundamental and cross-cutting objective (in the sense that all joint policies must be compatible with environmental protection). According to Mr Philip, “few Community objectives have both of these characteristics”; the common agricultural policy or transport policy are not “cross-cutting” and in other areas, either the EC does not have legislative jurisdiction, or the Council can only deliberate on the basis of unanimity (fiscal policy, energy policy, etc).
b) criminal sanctions must be of a “necessary” and “indispensable” nature in order to ensure the full effectiveness of standards in order for the Community method (first pillar) to be useful. How should this nature be defined? Is there a risk of legal action?
The rapporteur also raises the danger that Council formations other than the Justice and Home Affairs Council could have criminal jurisdiction, in particular the Environment Council. We should recall however that, legally speaking, the Council is a single institution, and that the consistency and cooperation between the different 'formations' are an issue for the Council itself to deal with.
2.The European Commission's interpretation of the judgement is excessive and goes beyond a literal interpretation. According to Mr Philip, the communication of last November from the European Commission, giving as it does an “extensive” interpretation of the Court's judgement, is “contestable on several fronts”. The Commission considers that the judgment by far exceeds the area of the environment and that it is applicable to other joint European policies and to the four freedoms (free movement of persons, goods, services and capital). This would make it possible to introduce, through the “community method”, systems of criminal sanctions in the areas of transport, agricultural policy or fisheries, for example. This clearly does not correspond to the rapporteur's analysis of the judgment (see previous point). The Commission deduced that other decisions adopted by the Council under the intergovernmental procedure (third pillar) where adopted entirely or in part on an incorrect legal basis, and suggests replacing these with “directives” to be adopted using the “Community method” (Commission proposal, adoption by the Council and the European Parliament in codecision). The list of the texts in question drawn up by the Commission (printed in this column in bulletin 9117 as already mentioned) includes, according to Mr Philip, “areas which clearly do not correspond to essential, fundamental and cross-cutting Community objectives”; in the case of a matter on which the Council has not yet deliberated (criminal-law protection of EC financial interests), its inclusion on the list is deemed to be “surprising”.
Additionally, Mr Philip does not believe it is possible to transform the decisions in question into Community directives using the very simple procedure suggested by the Commission, i.e. modification of the legal basis without debate. This presupposes a commitment in advance from both the Council and the Parliament not to reopen the debate on the content, a commitment which is “unlikely” because, he believes, the Parliament would probably want to discuss the content.
French Parliamentary delegation suggests transferring the entire matter to the “first pillar” of EU Treaty using “bridging clause”
One might expect, when reading the first two parts of the Philip report, that the final part would contain critical or reticent conclusions concerning the situation created by the Court's judgement, and even more so by the European Commission's communication. But in fact, the opposite is true: the rapporteur proposed, and the delegation agreed, a draft resolution of the National Assembly suggesting bringing police and judicial cooperation in criminal matters under the Community framework! This uses the “bridging clause” in article 42 of the EU Treaty, which provides the possibility of such a transfer, in whole or in part. To understand the significance of such a transfer, it is enough to recall what it signifies from the point of view of institutional functions: under the third pillar, the Member States have an equal right of initiative with the Commission; the Council takes decisions unanimously, the Parliament is merely consulted; the legal instruments adopted do not have direct effect; the Commission cannot take action against a Member State for failure to fulfil obligations; the Court of Justice's jurisdiction is limited. All of these limitations disappear under the first pillar.
Within the delegation, the President Pierre Lequiller confirmed his pro-European stance (of which we had already been aware since he participated in the Convention which drew up the Constitutional Treaty) by declaring that he was in favour of “the reasonable solution proposed by the rapporteur” , and only one Assembly member, Pierre Forgues, expressed reservations, judging that the planned solution “does not, in my view, constitute a sufficient guarantee to protect us against exceptions encouraged by the Court of Justice and the Commission”. And the draft resolution was adopted.
Political objectives. The rapporteur's arguments to convince his colleagues were essentially political and in part reassuring, e.g.: a) the changeover conditions under the first pillar will be defined by the Member States, and them alone; b) the Council will take the decision unanimously, and it will then have to be ratified by all the national parliaments; c) the President of the Republic in France recently came out in favour of improving the functioning of the institutions using the framework of the existing treaties, particularly in the areas of internal security and justice “where progress can be made”; d) this initiative would allow “progress to be made on subjects such as combating terrorism and drug-trafficking, where citizens have high expectations”; e) possible reluctance on the part of other Member States could be taken into account, because Britain and Ireland are covered by the opt out granted to them for all of the areas concerned, and other concerns could be appeased using the so-called “emergency brake” clause which was inserted into the draft Constitutional Treaty and which consists of a “right of appeal” to the European Council at the request of any Member State which believes that a draft is incompatible with the fundamental principles of its legal system; f) the European Parliament has just included the “full use of the bridging clause in the area of justice and home affairs” in the “small number of democratic reforms” to introduce at this stage without revision of the treaty (resolution of 19 January on the Duff-Voggenhuber report: EUROPE/Documents 2431 point 9).
As for the concerns that have arisen in certain Member States and institutions as to a “possible tendency of the Court of Justice to set itself up as a constituent power to compensate for the failure of the Constitutional Treaty”, here is Christian Philip's response: “This is why the political power should take the matter in hand and clarify the situation”.
It remains to be seen what the follow-up will be to this initiative, first from the National Assembly, then from the French government.
(F.R.)