I. Introduction to the issue[i]
Criminal law has always been a sensitive topic in the context of European law. The EC states argue that criminal law is historically shaped by national values and cultural achievements[ii] and is therefore at the core of their national sovereignty,[iii] so that this matter is inviolable by the European Community.[iv] Oehler points out that this must "always be kept in mind when trying to understand and assess economic criminal law". Since no other area of law is as dependent on social consensus as the rules and prohibitions of a legal system[vi] that are sanctioned in criminal law, the idea of having a foreign, and possibly less effective, criminal law imposed on them is simply intolerable for many member states. In fact, the Member States are more sensitive about supranational criminal law than they are about any other area.[vii] In this respect, the national legislatures emphasize the national aspect more consistently than in the 19th century.[viii] Many see a renunciation of sovereignty by the member states with regard to criminal law as a sign of the end of their sovereignty. [ix] Not least for this reason, some countries regard criminal law as an exclusively national matter.
Even landmark rulings, such as the decision of the ECJ judgment of 13.9.2005 – C-176/03 (Commission v Council)[x], as well as a constantly growing number of European legal acts of criminal content, have not changed the basic view of Germany and many other EC states that that criminal law remains at the core of national sovereignty. There is an unchanged mistrust of any foreign criminal jurisdiction. According to the principle of conferral, the Community institutions could only have competence over matters that had previously been transferred to them by the Member States. This principle, which is enshrined in Art. 5(1)[xi], 7 (1) sentence 2[xii], 10 (1) ECT[xiii], is referred to as the principle of conferral (principe de compétence d'attribution).[xiv] Because of the lack of willingness on the part of the Member States to relinquish criminal jurisdiction as a preserve of state power,[xv] supranational criminal law provisions have not been possible to date. Otherwise, there would be a violation of the principle of conferral. As long as this area of regulation is deliberately withheld from the EC,[xvi] criminal law does not participate in the process of European integration.
In the much-publicized Placanica judgment, the European Court of Justice ruled that the articles on the freedom of establishment and the freedom to provide services under Articles 43 and 49 EC 43 and 49 EC are to be interpreted as precluding national legislation which imposes a criminal penalty on persons such as the defendants in the main proceedings for collecting bets without the license or police authorization required under national law. This must apply in any event where those persons have been unable to obtain those licences or authorizations because the Member State concerned, in breach of Community law, refused to grant them. In these circumstances, the Italian Republic cannot impose criminal penalties on persons such as the defendant for collecting bets without a license or police authorization. The legal literature[xviii] has largely attributed importance to the judgment for the gambling sector and sports betting licenses, and probably disregards the fact that the judgment is also of central importance for European criminal law. The ECJ has ruled that any kind of sanction against natural or legal persons is inadmissible if it may arise from the legal systems of the Member States but is contrary to EC law. Similar rulings had been made in the cases of"Drexl"[xix],"Cowan"[xx] and the"Donckerwolcke" case[xxi ]. Such judgments by the Court not only refute the widespread misconception of the "immunity"[xxii] or"blindness"[xxiii] of national criminal law to European influencesbut already entail an immense loss of national sovereignty. If we consider that the individual nation state has lost the freedom to decide which forms of behavior in essential areas of life should be incriminated – in this context, one speaks of a so-called "ius non puniendi"[xxiv] –, so it can no longer be said that there are only isolated and tenuous"points of contact"[xxv] between criminal law and community law. Rather, the judgments lead to the conclusion that there can no longer be any talk of a genuine exclusive jurisdiction of the Member States over criminal law.[xxvi] In any case, the original concept that criminal law falls exclusively within the jurisdiction of the EC states has been shaken by the rulings. The Europeanization of national criminal law has progressed further than even criminal law insiders suspect. Prejudices about a"Europe-proof"[xxvii] national criminal law are likely to be dispelled when one considers how diverse the effects of European Community lawmaking on classical criminal law are. In any case, anyone who talks about criminal law can no longer describe it as the "domaine réservé"[xxviii] of the individual nation states.
The judgment of the European Court of Justice of September 13, 2005 – C-176/03 (Commission v. Council) was hard to beat in terms of its significance and scope for European criminal law. [xxix] In this judgment, the Court of Justice of the European Communities dealt fundamentally with the demarcation of EU law from EC law.[xxx] The subject of the judgment was Framework Decision 2003/80/JHA on the protection of the environment through criminal law, [xxxi] with which the EU wanted to take coordinated action against the worrying increase in environmental crime. This specifically defined a series of environmental offenses as crimes committed either intentionally (Article 2) or negligently (Article 3) and required the member states to provide for criminal penalties in this regard. The Commission objected to the choice of Article 34 EU in conjunction with Article 29 and 31 lit. e EU as the legal basis of the framework decision. The Commission itself had proposed proceeding via Community law in the form of a directive. The ECJallowed the action and argued that there was a Community competence for Articles 1 to 7 of the framework decision under Article 175 EC. The decisive factor was that, with regard to the regulated subject matter, an EC competence existed that precluded action within the framework of the EU. With this decision, the Court of Justice has strengthened the criminal law authority of the EC institutions and thus the EC's criminal law powers as a whole.
In addition to the ECJ's statements on the EC's environmental competence and the distinction from the so-called "third pillar" (PJZS), the judgment has met with such great interest because of the court's statements on the EC's competences in criminal law. Critics of the judgment already feared an expansion of the influence of Community law on criminal law.[xxxiii] The importance of the court's decision was evident from the fact that the Commission and the European Parliament responded in the form of a communication and a resolution, respectively, resolution and provided their own interpretation approaches. The Commission did so in its Communication to the European Parliament and the Council on the implications of the judgment of the Court of Justice of 13 September 2005 (Case C-176/03, Commission v Council).xxxiv The European Parliament, which had joined the Commission in the action, commented on the content and scope of the decision in its "Resolution on the implications of the judgment of the Court of Justice in Case C-176/03 Commission v Council"[xxxv ].
II. The facts of the case
In an action brought on 8 December 2005, the Commission of the European Communities requested that Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of thepollution from ships[xxxvi] for null and void. On July 12, 2005, the Council of the European Union had adopted this framework decision on the initiative of the Commission. It was intended to supplement Directive 2005/35/EC of the EuropeanEuropean Parliament and of the Council of 7 September 2005[xxxvii] on ship-source pollution and on the introduction of penalties for infringements by including detailed provisions on criminal offences and penalties, as well as other provisions. The European Commission believed at the time that this division into two different legislative acts was necessary because the EC Treaty, via Article 80 (2) of the EC Treaty, only provided for competence in relation to maritime transport, and thus a European directive was only possible with regard to this subject matter. Provisions of international criminal law, on the other hand, fell – according to the Commission – under Title VI of the EU Treaty (Police and Judicial Cooperation in Criminal Matters), so that here the Member States concluded an agreement in the form of a framework decision under international law.
The legislative offensive was based on the European Union's view that the majority of global marine pollution can be explained by ships deliberately discharging substances into the water. To this day, the practices of tank cleaning or discharging substances such as used oil into coastal waters or the high seas are prohibited under the International Convention for the Prevention of Pollution from Ships (the MARPOL Convention) are widespread, including the cleaning of tanks and the discharge of substances such as used oil into coastal waters or the high seas. The MARPOL Convention addressed the prevention of marine pollution by oil and other harmful substances from ships' sewage and garbage. Although the Convention requires criminal sanctions for violations, only a fraction of the offenses have been prosecuted, let alone seriously prosecuted, by member states.xxxviii This is due to a lack of compliance with and enforcement of the MARPOL Convention standards.
As can be seen from its first five recitals, Framework Decision 2005/667, which was based on Title VI of the EU Treaty, in particular Articles 31(1)(e) EU and 34(2)( b EU, was intended to be an instrument of the European Union for the approximation of the laws of the Member States in the area of criminal law, by which the Member States are obliged to provide for uniform criminal penalties for the purpose of combating intentional or grossly negligent ship-source pollution.
Framework Decision 2005/667 provided that the Member States had to take a number of measures in relation to criminal law in order to achieve the objective of Directive 2005/35, which was to ensure a high level of safety and environmental protection at sea. It requires Member States to provide for effective, proportionate and dissuasive criminal penalties for legal and natural persons who commit, instigate or abet the criminal offenses established by Directive 2005/35/EC (the Ship Source Pollution Directive, or SSPD, which establishes sanctionsfor violations), instigated or aided and abetted such offenses. The decision also specified the type and extent of the criminal penalties to be applied, depending on the level of damage caused to water quality, animal and plant species or people.
The Commission took the view that the framework decision is not the appropriate legal instrument for obliging Member States to criminalize illegal discharges of pollutants at sea and to introduce corresponding criminal penalties at national level.
As the Commission pointed out before the Court in the context of its challenge to the Framework Decision on the protection of the environment through criminal law (Case C-176/03, judgment of 13 September 2005, Commission v Council, ECR 2005, I-7879), it considered that, in the context of its competences, for the purpose of achieving the objectives set out in Article 2 of the Treaty establishing the European Community, the Community is competent to require Member States to introduce national penalties, including criminal penalties, if this proves necessary to achieve a Community objective. This applied to matters relating to pollution by ships; the legal basis for this was Article 80 (2) of the Treaty establishing the European Community. Taking the view that Framework Decision 2005/667 had not been adopted on the correct legal basis and that there was therefore an infringement of Article 47 EC, the Commission brought the present action. By order of 25 April 2006 the President of the Court granted the EuropeanEuropean Parliament to intervene in support of the form of order sought by the Commission, and the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the Hellenic Republic, the French Republic, Ireland, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland were granted leave to intervene in support of the form of order sought by the Council. By order of 28 September 2006, the President of the Court granted the Republic of Slovenia leave to intervene in support of the form of order sought by the Council.
III. The judgment
The provisions of the framework decision that were intended to oblige the Member States to make certain conduct a criminal offense could have been validly adopted on the basis of the EC Treaty, according to the Luxembourg judges. The Court concedes that substantive criminal law and law on criminal procedure do not, in principle, fall within the scope of Community competence. However, the Court finds that, where the application of effective criminal penalties by the competent national authorities is an essential measure for combating serious environmental pollution, the Community legislature may none the less require the Member States to introduce such penalties to ensure that the rules of law which it lays down in the sphere of maritime transport are fully effective. The Court went on to state that, by contrast, the nature and level of criminal penalties do not fall within the Community's competence. Assessment by the Court
52) Article 47 EU provides that the EU Treaty is not to affect the EC Treaty. The same is apparent from Article 29(1) EU, which introduces Title VI of the EU Treaty, entitled 'Provisions on police and judicial cooperation in criminal matters'.
53) It is for the Court to ensure that the acts which the Council claims are covered by Title VI do not encroach upon the powers conferred by the provisions of the EC Treaty on the Community (see judgment of 12 May 1998 in Case C-170/96 Commission v Council [1998] ECR I-2763, paragraph 16, and the judgment of 13 September 2005 in Commission v Council, paragraph 39).
54) It must therefore be determined whether the provisions of Framework Decision 2005/667 affect the exercise of the competence conferred on the Community by Article 80(2) EC, 80(2) EC, in so far as, as the Commission submits, they could have been adopted on the basis of that provision.
55) The common transport policy is one of the foundations of the Community, since under Article 70 EC, read in conjunction with Article 80(1) EC, requires the Member States to pursue the objectives of the Treaty in the field of transport by rail, road and inland waterway, in the context of that policy (see Case 97/78 Schumalla [1978] ECR 2311, paragraph 4).
56) Pursuant to Article 80(2) EC, the Council may decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea transport (see, inter alia, judgment in Case C-18/93 Corsica Ferries [1994] ECR I-1783, paragraph 25), and the procedural rules of Article 71 EC apply.
57) According to the case-law of the Court of Justice, Article 80(2) EC does not in any way preclude the application of the EC Treaty to maritime transport, but merely provides that the special rules on the common transport policy contained in Title V of the EC Treaty do not automatically apply to that sector of activity (see, inter alia, judgment of 7 June 2007, Commission v Greece, C-178/05, ECR [2007], p. I-0000, paragraph 52).
58) Since Article 80(2) EC does not contain any express restriction as to which common specific rules the Council may adopt on this basis in accordance with the procedural rules of Article 71 EC, the Community legislature has extensive legislative authority under this provision and, on this basis and by analogy with the other provisions of the EC Treaty on the common transport policy, in particular Article 71(1) EC, inter alia, for the adoption of "measures to improve transport safety" and "any other appropriate provisions" in the field of maritime transport (see see, in relation to road traffic, Joined Cases C-184/02 and C-223/02 Spain and Finland v Parliament and Council [2004] ECR I-7789, paragraph 28).
59) The finding that the Community legislature may, within the framework of the powers conferred on it by Article 80(2) EC may take measures to improve maritime safety is not called into question by the fact that, in the present case, the Council did not consider it appropriate to adopt the provisions of Framework Decision 2005/667 on the basis of Article 80(2) EC. A competence conferred by Article 80(2) EC exists independently of whether the legislature decides to actually make use of it.
60) Furthermore, since the requirements of environmental protection, which is one of the essential objectives of the Community (see, inter alia, judgment of 13 September 2005, Commission v Council, paragraph 41), must be integrated into the definition and implementation of [...] Community policies and activities [&]', such protection must be regarded as an objective which is also an integral part of the common transport policy. The Community legislature may therefore, on the basis of Article 80(2) EC, 80(2) EC, in the exercise of the powers conferred upon it by that provision, to promote protection of the environment (see, by analogy, Case C-336/00 Huber [2002] ECR I-7699, paragraph 36).
61) Finally, according to settled case-law, the choice of legal basis of a Community act must rest on objective factors that are amenable to judicial review, in particular the aim and content of the act (see judgments in Case C-300/89 Commission v Council [1991] ECR I-2867, 'Titanium dioxide', paragraph 10; Huber, paragraph 30; and Case C-318/04 Commission v Council, paragraph 4).
62) As regards more specifically Framework Decision 2005/667, it is apparent from its preamble that it seeks to improve safety at sea while enhancing protection of the marine environment from pollution by ships. As is clear from recitals 2 and 3 in its preamble, it is intended to approximate the laws of the Member States in order to avoid a repetition of disasters such as the sinking of the oil tanker Prestige.
63) According to its fourth recital and the sixth recital in the preamble to Directive 2005/35, the purpose of the framework decision is to supplement that directive with detailed provisions in the area of criminal law. As is apparent from recitals 1 and 14 in its preamble and from Article 1 thereof, the directive also seeks to achieve a high level of safety and environmental protection. According to recital 14 in its preamble and Article 1 thereof, the directive aims to incorporate into Community law the international standardsof ships into Community law and to lay down sanctions, which may include criminal or administrative sanctions, for breaches of those standards, in order to ensure their effectiveness.
64) In terms of content, Framework Decision 2005/667 requires Member States under Articles 2, 3 and 5 to provide for criminal penalties for legal and natural persons who have committed, instigated or aided and abetted the criminal offenses referred to in Articles 4 and 5 of Directive 2005/35.
65) The framework decision, which requires that criminal penalties be effective, proportionate and dissuasive, also determines, in Articles 4 and 6 also determine the type and extent of the applicable criminal penalties in accordance with the damage caused by the criminal acts to water quality or to animal and plant species or to humans.
66) Admittedly, neither criminal law nor criminal procedure falls, in principle, within the competence of the Community (see, to that effect, Case 203/80 Casati [1981] ECR 1981, p. 2595, para. 27; Case C-226/97 Lemmens [1998] ECR I-3711, para. 19; and Case C-319/99 Commission v Council, cited above, para. 47), the fact remains that, where the application of effective, proportionate and dissuasive criminal penalties, imposed by the competent national authorities, is an essential measure for combating serious environmental harm, the Community legislaturemeasures which are essential in order to prevent serious environmental damage, the Member States are none the less required to introduce such penalties, in order to ensure that the provisions of the legislation which it has adopted in that area are fully effective (see, to that effect, Case C-380/04 Commission v Council, paragraph 48).
67) In the present case, it must be stated, first, that the provisions of Framework Decision 2005/667, like those of Framework Decision 2003/80 at issue in the case which gave rise to the judgment in Commission v Council, cited above, concern conduct which is particularly harmful to the environment, in this case by disregarding Community legislation on maritime safety.
68) Secondly, it is apparent from recitals 3 to 5, 7 and 8 in the preamble to Directive 2005/35 and from the first five recitals in the preamble to Framework Decision 2005/667 that the Council considered criminal penalties to be necessary ensure compliance with Community legislation in the field of maritime safety.
69) Since Articles 2, 3 and 5 of Framework Decision 2005/667 are intended to ensure the effectiveness of the rules adopted in the area of maritime safety, a failure to comply with which may have serious consequences for the environment, and to that end require the Member States to impose criminal penalties for certain conduct, the main purpose of those articles is to improve maritime safety and environmental protection and they could have been validly adopted on the basis of Article 80(2) EC.
70) By contrast, and contrary to the Commission's submissions, it is not within the Community's competence to determine the type and level of criminal penalties to be imposed.
71) Provisions such as Articles 4 and 6 of Framework Decision 2005/667/JHA cannot therefore be adopted by the Community legislature because they concern the type and level of criminal penalties that may be applied. Those provisions have thus been adopted without infringing Article 47 EU.
72) It is clear from the references made by those provisions to Articles 2, 3 and 5 of Framework Decision 2005/667 that, in the present case, those provisions are inextricably linked to the provisions relating to the criminal offences to which they refer.
73) Articles 7 to 12 of Framework Decision 2005/667, which concern jurisdiction, mutual information between Member States, designation of contact points, the territorial scope of the framework decision, the obligation on Member States to transpose it and the date of entry into force of the framework decision, are also in this case inextricably linked to the provisions of the framework decision referred to in paragraphs 69 and 71 of this judgment, so that it is not necessary to rule on whether they fall within the competence of the Community legislature.
74) It follows from the foregoing that, by encroaching on the competences conferred on the Community by Article 80(2) EC, Framework Decision 2005/667 is in breach of Article 47 EU and must be annulled in its entirety due to its indivisibility.
IV. Analysis of the grounds for the decision and comments
With its decision of October 23, 2007 – C-440/05 (Commission v Council),[xxxix] the ECJ has, on the one hand, taken a further step towards recognizing a more comprehensive competence of the EC organs for criminal law, but on the other hand has drawn a line under jurisdiction. The judgment is a classic example of why the European Court of Justice is considered the "engine of integration". Criminal law is thus obviously participating in the process of European integration, despite voices to the contrary. The ECJ's decision of October 23, 2007 gives the impression as if this not only recognized a criminal law competence for the approximation of national criminal law in environmental and transport policy, but also that further harmonization efforts would be within the court's jurisdiction in individual cases if the legal interests of policy areas of the EC Treaty were severely impaired. It should be noted that this does not concern the imposition of the Union's own criminal sanctions, but rather the power to oblige Member States to classify certain acts as criminal offences within their own criminal justice system in order to maintain the Community legal order.
In its judgment, the ECJ again explicitly stated that the Community is empowered to "oblige the Member States [...] to introduce such sanctions in order to ensure that the rules of law it has adopted in this area are fully effective, where the application of effective, proportionateproportionate and dissuasive criminal penalties, the application of such penalties by the competent national authorities being an essential measure for combating serious environmental impairment ("Rn. 66). The EC legislature has therefore been granted a margin of discretion in what appears to it to be "necessary" in individual cases to ensure the full effectiveness of Community legal norms through criminal law measures by the Member States. Apparently, the power of the EC institutions to enact criminal law is now subject only to the condition of "indispensability" or "necessity".[xli]
In its judgment of October 23, 2007, which again concerned the concurrent jurisdiction of the first and third "pillars", the European Court of Justice, as expected, upheld its previous ruling that a legal act may not be issued on the basis of the EU Treaty if the EC has competence in respect of the matter regulated. In any case, Article 47 EU establishes the primacy of the EC Treaty. According to Article 47 EU, the Treaty on European Union shall not affect the EC Treaty. The same follows from Article 29(1) EU, which introduces Title VI of the EU Treaty. It is for the Court to ensure that the acts which the Council claims are covered by that Title VI do not encroach upon the powers conferred by the provisions of the EC Treaty on the Community.[xlii] According to the statements of the ECJ, it was therefore necessary to examine whether Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution[xliii] affect the competence of the Community under Article 80 (2) EC to the extent that they could have been adopted on the basis of that provision. Ultimately, the ECJ answered this question in the affirmative for certain provisions and stated that the main purpose of the articles of the Framework Decision was to increase maritime safety and that these provisions could have been validly adopted on the basis of Article 80 (2) EC. The EC institutions are in principle authorized to obligate the Member States to enact effective and also deterrent criminal sanctions for legal and natural persons who commit offenses within the meaning of Directive 2005/35/EC of the EuropeanEuropean Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements.
The ECJ thus agreed with the Commission of the EC, which was of the opinion that the framework decision had not been adopted on the correct legal basis.[xliv] The Court therefore annulled the framework decision. The legal basis used was Article 31(1)(e) EU and Article 34(2)(b) EU, which are provisions of intergovernmental cooperation. The objective and content of the framework decision do indeed fall within the competences provided for by the EC Treaty in the context of the common transport policy. Since Articles 2, 3 and 5 of Framework Decision 2005/667 are intended to ensure the effectiveness of the rules adopted in the field of maritime safetymay have serious consequences for the environment, and to that end require the Member States to establish criminal liability for certain conduct, those articles have as their essential objective the improvement of maritime safety and the protection of the environment and could have been validly adopted on the basis of Article 80(2) EC. If this had been observed, the Commission would have had to initiate the legislative procedure and involve the European Parliament in the adoption of the act in question.</span><span>.
1. Continuation of the landmark ECJ ruling of September 13, 2005 – C-176/03
The present decision of the ECJ is a direct follow-up to the landmark decision of the Court of Justice of September 13, 2005, in the case Commission v. Council, C-176/03. In that case, the ECJ had already recognized the EC's competence to partially harmonize the national criminal laws of the Member States by means of a directive. In contrast to this, it had been argued in legal literature and by members of the Council of the EC – as has now been shown to be the case – that criminal law was reserved for the institutionalized police and judicial cooperation between governments in criminal matters under Title IV of the EU Treaty.The Court had annulled Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law with the parallel reasoning that the measures at issue in that case,measures requiring Member States to provide for criminal penalties for a range of environmental offenses should have been based by the Community on an enabling provision of the EC Treaty (Art. 175 EC). Here, too, a legal act of a criminal nature had been adopted on the basis of Title VI of the EU Treaty, under the misapprehension that criminal law was reserved to the "third pillar". Overall, in the 2005 judgment, the ECJ considered that the Community legislature was empowered to adopt measures that explicitly oblige Member States to impose criminal sanctions for certain behavior and that thus contain a partial harmonization of the criminal laws of the Member States.[xlvii] In the "Communication from the Commission to the European Parliament and the Council on the implications of the judgment of the Court of Justice in Case C-176/03 Commission v Council"[xlviii], which followed this judgment,the EC institution had already decided to bring an action before the Court of Justice for annulment of Framework Decision 2005/667/JHA. This was the only case in which the procedural deadline allowed the Commission the option of bringing an action for annulment.
Since the Court has remained true to this approach even two years later, it can be said in retrospect that the last significant decision for European criminal law in 2005 was not an outlier. Contrary to the expectations of Eurosceptics, the ECJ has no longer limited the partial harmonization of national criminal laws to environmental policy.[xlix] The European Parliament was still under this impression in its "Resolutionon the consequences of the judgment of the Court of Justice in Case C-176/03 Commission v Council, The Court did not answer this question with the desired clarity, as the Advocate General Ján Mazák had demanded in his opinion of June 28, 2007 (para. 99). The ECJ has recently made explicit reference to environmental protection on several occasions, especially since the framework decision under examination was at the interface between maritime transport and environmental policy. However, the ECJ did not explicitly confirm the general transferability of the decision, for example on the basis of the principle of the effectiveness of the underlying Community law.
2. The depth of regulation of the criminal sanctions of the Framework Decision 2005/667/JHA
In his opinion of 28 June 2007, Advocate General Mazák rightly stated that the important question of how far the step taken in the judgment of 13 September 2005 towards the partial harmonization of the criminal law of the Member States really went was at the center of the present dispute, that is, how far the Community competence established thereby to to provide for criminal law sanctions extends in breadth and depth. The particular interest in this topic is based primarily on the fact that nationally divergent criminal law systems can cause distortions of competition. It must be considered very questionable whether legal harmonization measures alone can contribute to improving the legal situation. On the one hand, selective harmonization measures for individual provisions of the special part of the criminal code cannot, on realistic consideration, prevent the inconsistent punishment of delinquents, since a person's criminal liability is still influenced by general rules and criminal procedural rights, which are highly diverse.On the other hand, the goal of equal sanctioning is jeopardized by the fact that the EC member states can decide for themselves how to comply with the directive if there is sufficient leeway for implementation.After all, directives are only binding on the member states as regards the result to be achieved (Art. 249 (3) EC). In particular, directives that only provide for the obligation to introduce "necessary measures" to ensure that violations of supranational community interests are sanctioned[lii] leave the member states a wide margin of discretion. However, this greatly jeopardizes the goal of harmonizing the subject matter: each competent national legislative body can decide for itself how to comply with the directive. If one member state considers the classification of violations of community law in criminal law to be appropriate, but a neighboring country considers administrative measures to be sufficient, then both states have formally complied with the implementation obligation arising from the directive. However, in the example case, the punishability will continue to differ greatly in the two member states. Since harmonization efforts are not desirable per se for these reasons, the discussion about the scope of the EC's competence in criminal matters and the enabling provisions of the EC Treaty is determined by whether it is permissible to define the type and level of sanctions to be provided for or in the future, even the authority to enact directly applicable criminal law by way of regulation. [liv] In the opinion of the ECJ, the limit of the competence of the EC institutions is exceeded in any case if the EC institutions prescribe the (minimum) level of sanctions to the Member States. In this regard, too, the Court followed the opinion of the Advocate General. Articles 4 and 6 of the Framework Decision provided that Member States would have to punish the offense by a prescribed (minimum) custodial sentence as a maximum. For gross negligence, the custodial sentence should be at least two to five years according to Art. 4 of the Framework Decision 2005/667 should be at least two to five years, and for intentional crimes even five to ten years. This no longer falls within the competence of the Community, the Court stated. In its decision of September 13, 2005 – C-176/03 (Commission v. Council), the Court had already emphasized that the Member States must be granted sufficient leeway in the implementation of EC directives.[lvi] However, the Commission's view that the Framework Decision does in fact leave the Member States a certain amount of discretion with regard to the type and level of criminal penalties to be applied, and that the national courts are authorized to impose individual sentences, cannot be entirely dismissed.[lvii] In the Framework Decision, the specific level of the sanction was left open and only a specific framework for a criminal sanction was provided. However, the definition of criminal sanctions was undisputedly the content of the Framework Decision. However, the ECJ considered this concretization of a criminal sanction and the limited scope for implementation by the Member States to be an overreach, and it rejected the corresponding directive. It is likely that this is why the Council of the European Union had refrained from specifically defining implementation obligations in directives in the past, thereby thwarting the attempts of the European Parliament and the Commission in this regard.This also explains why the obligation of the Member States to impose criminal penalties, as provided for in the "Proposal for a Council Directive on the prevention of the use of the financial system for the purpose of money laundering", was no longer included in the final version. Art. 2 of this proposed directive provided for the EC Member States to be obliged to ensure that [...] money laundering is punishable as a criminal offense under their national law.
Furthermore, criminal penalties, their effectiveness and their deterrent effect must not be considered in isolation from the other criminal penalties provided for in national law and their implementation as an enforcement tool in a Member State. The size of a fine in different Member States can convey a completely different impression of the seriousness of the offense. The Member States would therefore undoubtedly be better placed than the Community to translate the term "effective, proportionate and dissuasive criminal sanctions" into their own legal systems and social contexts.Regardless of this, there would have been the purely practical problem that the sanctions required by the Framework Decision, e.g. in Article 6 of Framework Decision 2005/667, "in the maximum amount of of between EUR 750,000 and EUR 1,500,000"[lxii] would not have been compatible with the criminal law sanctioning system of individual Member States and would therefore have caused a "break" in national sentencing law. In Germany, as is well known, the amount of the fine is determined according to the daily rate system; the amount of the daily rates is only quantified in a second step, which is intended to ensure that the economic circumstances are taken into account. For the law of administrative offenses, the alignment of the amount of the fine with the financial situation arises from § 17 para. 3 p. 2 OWiG. It would also be beyond the scope of the member states' powers to introduce corporate penalties or to establish uniform penalties against companies/associations of companies in national penal codes.
As is well known, there are considerable reservations, particularly in Germany, about the criminal liability of legal persons because of the danger of violating the principle of guilt.[lxiii] According to Article 5 of the Framework Decision, the Member States would otherwise have had to take the necessary measures to ensure that legal persons could be held liable for the criminal offences referred to in Articles 2 and 3 of the Framework Decision can be held liable for the criminal offenses referred to in Articles 2 and 3 of the Framework Decision.
3. Intergovernmental cooperation in the EU Treaty as a legal basis for provisions with specific sanction amounts and critical evaluation
In this context, the remark by the Court at the end of the judgment is interesting: that Articles 4 and 6 of the Framework Decision "were not adopted in contravention of Article 47 TEU".[lxv] Of course, this could not change the overall invalidity of the Framework Decision. It follows, however, that the Court assumed that these provisions on the type and extent of the sanction could be issued on the basis of the EU Treaty. This is surprising. In this point, too, the Court apparently followed the Advocate General, who, in point 131 of his opinion, was of the opinion that the enactment of such provisions fell under Title VI of the Treaty on European Union. However, this interpretation seems difficult to reconcile with the current division of powers between the first and third pillars. The splitting into two different legislative acts seems inappropriate at first glance and lacks a uniform, homogeneous overall concept. In view of the different degrees of integration of Community legal acts and international agreements, it would be completely incomprehensible if the determination of particularly sensitive matters, such as the specific level of a criminal sanction, is to be left to the third pillar, which is developed under international law, although the EC Treaty in principle takes precedence. This would be even more absurd in the case of legal acts for the protection of Community policy areas in which the Member States have transferred extensive powers to the organs of the EC and have conversely waived their sovereign rights. It would no longer be comprehensible if (of all things) the EU Treaty were to apply here instead of the EC Treaty.
V. Conclusion and outlook
Ultimately, it can be said that the judgment is the most significant decision in European criminal law in a long time and that the path has been cleared for a more comprehensive partial harmonization of the criminal codes of the Member States under the direction of the EC institutions, since the ECJ's reasoning, without exception,other common policies and the four freedoms (free movement of persons, goods, services and capital). The adoption of appropriate criminal law measures based on Community law will continue to be subject to the proviso that there is a demonstrable need to remedy serious shortcomings in the implementation of Community objectives by criminal law measures that ensure the full effectiveness of a Community policy or the realization of a fundamental freedom. The necessity for this must be demonstrated in each individual case. However, this limit is exceeded in the case of criminal law guidelines that leave no room for implementation. In its judgment of October 23, 2007 – Case C-440/05, the ECJ ruled that such provisions regarding the type and extent of the applicable sanction are not within the scope of competence. However, the ECJ ruling did point out a way forward: the enabling provisions of intergovernmental cooperation in the EU Treaty should be used here. It therefore stands to reason that this part of Framework Decision 2005/667/JHA will be adopted in isolation on the basis of the EU Treaty. It is therefore doubtful whether this will put an end to the practice of dual legislation (directive or regulation plus framework decision), which has been repeatedly used in recent years.It remains to be seen where provisions on the type and level of criminal penalties will be placed in the future and whether this will stand up to scrutiny by the European Court of Justice.
The author is a lawyer specializing in criminal law at the law firm Dr. Caspers & Mock in Koblenz.
[ii] Bruns, Der strafrechtliche Schutz der europäischen Marktordnungen für die Landwirtschaft, 1980, p. 15; Rüter, ZStW 105 (1993), 30 (35); Satzger, Die Europäisierung des Strafrechts, 2001, Chapter 3. A. II. 2).
[iii] Ambos/Steiner, JuS 2001, 9 (11); Argyropoulos, KritV 1999, 201 (205); Kaiafa-Gbandi, KritV 1999, 162 (169).
[iv] Albrecht/Braum, ELR 1999, 293 (298); id., KritV 1998, 460 (466); Bernardi, RDPC 1997, 405 (408, 412); Biancarelli, RSCDPC 1987, 131; id./Maidani, RSCDPC 1984, 225 (226); Dannecker, Jura 1998, 79 (80); Johannes, ZStW 83 (1971), 531 (542); Jung, JuS 1998, 1 (6), this, JuS 2000, 417 (424) rightly speaks of "affinity between criminal law and central power or state"; similarly, in this, in id./Müller-Dietz/ Neumann (eds), Perspektiven der Strafrechtsentwicklung, lecture series in the summer semester 1994 at the University of Saarland, 1996, p. 69; Magiera, DÖV 1998, 173 (181); Manoledakis, KritV 1999, 181 (184); Otto, Jura 2000, 98; Teske, EuR 1992, 265 (271); Wilkitzki, ZStW 105 (1993), 821 (826).
In: Arzt et al. (eds.), Festschrift für Baumann, Jürgen, 1992, p. 561.
[vi] Binding, Handbuch des Strafrechts, Volume I, 1885, pp. 4-7, 82, 96, 152 f.
[vii] "Analysis of current practice and proposals for combating mismanagement, irregularities and fraud, by the Committee of Independent Experts, Volume II, 2nd Report on the Reform of the Commission of10.9.1999", p. 191; Johannes, ZStW 83 (1971), 531 (550); Marqués/Kert, ÖJZ 1999, 213 (214); Sieber, ZRP 2000, 186 (191). On the mistrust of many European states towards foreign criminal justice in general, see Weigend, JuS 2000, 105 (110).
[viii] Oehler, in: Kaufmann/Schwinge/Welzel (eds), In Memoriam Grünhut, Max, 1965.
[ix] Pagliaro, in: Schönemann/González (eds), Bausteine des europäischen Wirtschaftsstrafrechts, Madrid Symposium for Klaus Tiedemann, 1994, pp. 379 et seq. (383).
[x] ECJ, judgment of September 13, 2005 – C-176/03 (Commission v Council), ZIS 2006, 179; NJW 2006, 281; EuZW 2005, 632. Cf. Hefendehl, ZIS 2006, 161.
[xi] "The Community shall act within the limits of the powers and objectives assigned to it in this Treaty."
[xii] " Each institution shall act within the limits of the powers conferred upon it in this Treaty".
[xiii] "O bligations arising out of this Treaty [...]".
[xiv] As was already the case before the contracts were amended: Advocate General Lagrange (Opinion), ECJ joined cases Rs 7/56, 3/57, 7/57 (Algera), Slg. 1957, 83 (167); Goll/Kenntner, EuZW 2002, 101; Kathrein, ÖJZ 1994, 785 (786).
[xv] Federal Republic of Germany in Case C-240/90 (Germany v Commission), ECR 1992 I, 5383 (5389); Dannecker, JZ 1996, 869; Kathrein, ÖJZ 1994, 785 (793); Spannowsky, JZ 1994, 326 (333); S.Z. v. 18.10.1999, p. 4; Teske, EuR 1992, 265 (271).
[xvi] Weigend, ZStW 105 (1993), 774 (779); Zuleeg, JZ 1992, 761 (768).
[xvii] ECJ, judgment of 6.3.2007 – C-338/04, C-359/04 and C-360/04 (Placanica, Palazzese and Sorricchio), NJW 2007, 1515.
[xviii] Note from Haltern, NJW 2007, 1520.
[xix] EC J, Case 299/86 (Drexl), ECR [1988] 1213.
[xx] Case 186/87 (Cowan) [1989] ECR 195 (222, para. 19).
[xxxi] EuGH, Rs. 41/76, Slg. 1976, 1937.
[xxii] Satzger, StV 1999, 132.
[xxiii] Gärditz, wistra 1999, 293 (294).
[xxiv] Cuerda Riezu, in: Schönemann/González (footnote 9), p. 367 et seq. (371).
[xxv] Rönnau, wistra 1994, 203 (204).
[xxvi] Kühne, Note on the judgment of the ECJ in Case C-226/97, JZ 1998, 1070.
[xxvii] Schünemann, GA 2002, 501.
[xxviii] Reisner, Die Strafbarkeit von Schein- und Umgehungshandlungen in der Europäischen Gemeinschaft, 1995, p. 7.
[xxix] On this point: Rosenau, ZIS 2008, p. 9 (13).
[xxx] H. Weiß, ZEuS 2006, 381.
[xxxi] OJ L 29, 5.2.2003, p. 55.
[xxxii] Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law, COM (2001) 139 of 13 March 2001, OJ. C 180 E of 26.6.2001, and amended proposal COM (2002), 544.
[xxxiii] Hefendehl, ZIS 2006, pp. 161 (167).
[xxxiv] COM (2005), 583 final.
[xxxv] Bull. 6-2006, No. 1.19.16, BR-Drs. 495/06 of July 10, 2006.
[xxxvi] OJ L 255, p. 164.
[xxxvii] OJ L 255, 30.9.2005, p. 11. The 6th recital already stated here: "This Directive is supplemented by detailed provisions on offenses and penalties, as well as other provisions, contained in Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.The Directive was based on the Treaty establishing the European Community, and in particular Article 80 (2) thereof.
European Commission, Draft Directive COM (2003), 92.
[xxxix] NJW-Spezial 2007, 552.
[xl] R. Bernhardt, in: Grewe et al. (eds), Festschrift für Kutscher, Hans, 1981, European Jurisdiction and National Constitutional Jurisdiction, p. 17 et seq. (22 with further references).
[xli] Rn. 68 of the judgment of October 23, 2007.
[xlii] See judgment of 12 May 1998 in Case C-170/96 (Commission v Council) [1998] ECR I-2763, paragraph 16.
[xliii] OJ L 255, 30.9.2005, p. 164.
[xliv] OJ EU C 22 of January 28, 2006, p. 10.
[xlv] So still apparently Satzger, Neue Kriminalpolitik 2007, 92.
[xlvi] OJ L 29, 5.2.2003, p. 55.
[xlvii] Fromm, ZIS 2007, 26. [
xlviii] OJ C 49, 28.2.2006; COM (2005), 583 final.
[xlix] Cf. note on the judgment of the Court of Justice of September 13, 2005 Heger, JZ 2006, 310.
[l] Kühl, ZStW 109 (1997), 777 (784); Zieschang, ZStW 113 (2001), 255 (268).
Dannecker, in: Eser/Huber (eds.), Strafrechtsentwicklung in Europa 4, Part 3, 1993, p. 60; Huthmacher, Der Vorrang des Gemeinschaftsrechts bei indirekten Kollisionen, 1985, p. 223; Weigend, ZStW 105 (1993), 774 (782, 799).
[lii] This occurred in the so-called "Accounting Directive" of July 25, 1978, OJ 1978, L 222, p. 11 et seq., the so-called "Insider Dealing Directive" of November 13, 1989, OJ 1989, L 334, p. 30, and the so-called "Money Laundering Directive" of June 10, 1991, OJ 1991, L 166, p. 77.
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