Opinion of the Advocate General — ECLI:EU:C:2013:534
Date: 2013-09-10
Language of the case: French
Subject matter: Transport;Police cooperation;Area of freedom, security and justice
Procedure: Action for annulment - successful

summary, Framework Decision 2005/214, like the directive, shows that it was the intention of the EU legislature to adopt, in respect of police and judicial cooperation, a functional approach to criminal matters in order not to make the effectiveness of the cooperation procedures depend on the differences existing between the legal systems and traditions of the Member States. We find the same idea in Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European Protection Order. (43) 71. Several points contained in the Stockholm Programme, adopted by the European Council in 2010, (44) also run counter to the Commission’s formal definition. I note that, in paragraph 3.1.1., entitled ‘Criminal law’, the European Council states that ‘[m]utual recognition could extend to all types of judgments and decisions of a judicial nature, which may, depending on the legal system, be either criminal or administrative’. In the same paragraph, devoted to criminal law, the European Council invites the Commission to ‘prepare a comprehensive study on existing legal and administrative obstacles to cross-border enforcement of penalties and administrative decisions for road traffic offences, and to present, where necessary, further legislative and non-legislative initiatives to improve road safety in the Union’. Those points show, in my view, that the objective of improving road safety in the Union forms an integral part of the construction of an Area of Freedom, Security and Justice, and that the cooperation and mutual recognition procedures in criminal matters may, according to a functional approach, apply to road traffic offences which are the subject of penalties under the administrative enforcement law of the Member States. 72. Moreover, the Commission itself, in its Communication to the European Parliament and the Council of 10 June 2009, entitled ‘An Area of Freedom, Security and Justice serving the citizen’, (45) states, in the arguments devoted to mutual recognition in criminal matters, that this ‘must extend to other types of judgment, which may be criminal or administrative depending on the Member State’. In that regard, it points out, inter alia, that ‘it should be possible to implement certain fines, which can be criminal or administrative according to the Member State, between countries, with a view to ensuring compliance with EU policies in general and, more specifically, improving road safety. (46) 73. I infer from all those considerations that the punishment of road traffic offences may be the subject of police and judicial cooperation procedures in criminal matters on the basis of the provisions of the FEU Treaty relating to the area of freedom, security and justice, whether those offences are connected with the administrative enforcement law or with the criminal law of the Member States. 74. In conclusion, it must be stated that taking a functional approach to what comes under criminal matters in the context of police cooperation and judicial cooperation does not result in the disappearance of any formal definitions. As we have seen, it is necessary to adopt a functional approach in order to ensure the effectiveness and uniform application of police or judicial cooperation procedures relating to offences and penalties which have not been classified by harmonising measures at EU level and which therefore fall, according to the legal systems and traditions of the Member States, within the scope of their administrative law or of their criminal law. 75. On the other hand, the formal approach is still relevant where, on the basis of Article 83(1) and (2) TFEU, the European Union decides to lay down minimum rules relating to the definition of criminal offences and penalties in the areas mentioned in those paragraphs. In those circumstances, harmonisation of the formal classification of the offences as criminal offences is expressly required. The definition of criminal offence must then be a formal one, with no risk of heterogeneity between the Member States since they are obliged to give the same classification to a given offence. II – Conclusion 76. In the light of all the foregoing considerations, I propose that the Court: – dismiss the application, and – order the European Commission to pay the costs, and the Kingdom of Belgium, Ireland, Hungary, the Republic of Poland, the Slovak Republic, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland to pay their own costs. 1 – Original language: French. 2 – OJ 2011 L 288, p. 1. 3 – COM(2008) 151 final. 4 – They are the Kingdom of Belgium, Ireland, Hungary, the Republic of Poland, the Slovak Republic, the Kingdom of Sweden and also the United Kingdom of Great Britain and Northern Ireland. 5 – See, inter alia, Case C‑130/10 Parliament v Council [2012] ECR, paragraphs 42 and 43. 6 – See Joined Cases C‑184/02 and C‑223/02 Spain and Finland v Parliament and Council [2004] ECR I‑7789, paragraph 30. 7 – With regard to what may be described as ‘ancillary harmonisation of criminal law’, see Bernardi, A., ‘L’harmonisation pénale accessoire’; Tricot, J., ‘Discussion — L’harmonisation pénale accessoire: question(s) de méthode — Observations sur l’art et la manière de légiférer pénalement selon l’Union européenne’, and Gindre, E., ‘Discussion — L’harmonisation pénale accessoire. Éléments de réflexion sur la place du droit pénal au sein de l’Union européenne’, Le droit pénal de l’Union européenne au lendemain du Traité de Lisbonne, Société de législation comparée, Paris, 2012, pp. 153, 185 and 197 respectively. 8 – OJ 2005 L 76, p. 16. 9 – Page 2 of that proposal for a directive. 10 – See, to that effect, Labayle, H., ‘Espace de liberté, sécurité et justice — Cadre général’, Jurisclasseur Europe, fascicule 2625, 2012, paragraph 9. 11 – OJ 1999 C 19, p. 1. 12 – Paragraph 6. 13 – Paragraph 15. 14 – We should note, however, with regard to the non-use of a safety-belt, the existence of Council Directive 91/671/EEC of 16 December 1991 on the approximation of the laws of the Member States relating to compulsory use of safety belts in vehicles of less than 3.5 tonnes (OJ 1991 L 373, p. 26), as amended by Directive 2003/20/EC of the European Parliament and of the Council of 8 April 2003 (OJ 2003 L 115, p. 63). 15 – As is shown by the referral to the law of the Member State of the offence in the definitions in Article 3 of the directive. 16 – OJ 2008 L 210, p. 1. That decision is associated with Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA (OJ 2008 L 210, p. 12). Those decisions are generally known as ‘the Prüm decisions’. 17 – The form used by the directive is therefore based on the first subparagraph of Article 12(1) of Decision 2008/615, which provides that ‘[f]or the prevention and investigation of criminal offences and in dealing with other offences coming within the jurisdiction of the courts or the public prosecution service in the searching Member State, as well as in maintaining public security, Member States shall allow other Member States’ national contact points … access to the following national vehicle registration data, with the power to conduct automated searches in individual cases: (a) data relating to owners or operators; and (b) data relating to vehicles’. 18 – Case C‑301/06 Ireland v Parliament and Council [2009] ECR I‑593. 19 – OJ 2006 L 105, p. 54. 20 – Paragraph 83 of that judgment. 21 – Case C‑482/08 United Kingdom v Council [2010] ECR I‑10413. 22 – OJ 2008 L 218, p. 129. 23 – Paragraph 50 of that judgment. 24 – Paragraph 51 of the judgment. 25 – Idem. 26 – Paragraphs 67 and 68 of the judgment in United Kingdom v Council. 27 – OJ 2008 L 350, p. 60. 28 – Case C‑176/03 Commission v Council [2005] ECR I‑7879. 29 – Case C‑440/05 Commission v Council [2007] ECR I‑9097. 30 – See, in that regard recitals 6 and 8 in the preamble to the directive. 31 – Emphasis added. 32 – See, in particular, the German and English language versions of Article 87(1) TFEU: ‘Die Union entwickelt eine polizeiliche Zusammenarbeit zwischen allen zuständigen Behörden der Mitgliedstaaten, einschlieβlich der Polizei, des Zolls und anderer auf die Verhütung oder die Aufdeckung von Straftaten sowie entsprechende Ermittlungen spezialisierter Strafverfolgungsbehörden.’ ‘The Union shall establish police cooperation involving all the Member States’ competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.’ 33 – See, in favour of a functional definition of police cooperation, De Biolley, S., ‘Coopération policière dans l’Union européenne’, Jurisclasseur Europe, fascicule 2680, 2010, paragraph 5. 34 – See footnote 17. 35 – OJ 2009 L 323, p. 20. 36 – Case C‑489/10 Bonda [2012] ECR, paragraph 39. 37 – Series A No 73, especially paragraphs 53 to 56. 38 – I am reproducing here the term used by the Union legislature, particularly with regard to common road traffic offences, in Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1; see recital 16 and Article 1(3)), and in Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1; see recital 17 and Article 2(2)). 39 – See point 23 of this Opinion. 40 – Case C‑60/12 Baláž, currently pending before the Court [see now judgment of 14 November 2013: EN translator note]. 41 – Emphasis added. 42 – See points 52 to 54 of the Opinion. 43 – OJ 2011 L 338, p. 2. see, in particular, recitals 3, 8, 10 and 20 in the preamble to that directive. 44 – The Stockholm Programme — an open and secure Europe serving and protecting citizens (OJ 2010 C 115, p. 1). 45 – COM(2009) 262 final. 46 – Paragraph 3.1.