EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 24.11.2005 
COM(2005) 583 final/2 
  
CORRIGENDUM 
Nouvelle traduction, notamment du point 10. CONCERNE les versions DE et EN. 
COMMUNICATION FROM THE CO MMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 
on the implications of the Court’s j udgment of 13 September 2005 (Case C-176/03 
Commission v Council) 
 
EN 2   EN COMMUNICATION FROM THE CO MMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 
on the implications of the Court’s j udgment of 13 September 2005 (Case C-176/03 
Commission v Council ) 
1. The judgment of 13 September 2005 in Case C-176/03 Commission v Council 
clarifies the distribution of powers between  the first and third pillars as regards 
provisions of criminal law. This clarif ication removes any doubts about a question 
which has long been controversial. The Commission’s aim with  this Communication 
is to explain the conclusions to be drawn fr om it. A list of the instruments affected by 
the implications of the judgment is in the annex . One of the aims of this 
Communication is to suggest a method to corr ect the situation with regard to texts 
which were, in the light of the Court’s ruling, not adopted on the proper legal basis. It also aims at setting the direction of th e future use of the Commission’s right of 
initiative.  
1. C
ONTENT AND SCOPE OF THE JUDGMENT OF 13 SEPTEMBER 2005  IN CASE C-176/03  
(COMMISSION V COUNCIL  
1.1. Content of the judgment of 13 September 2005 in Case C-176/03  
2. The Commission had asked the Court to  annul Council Framework Decision 
2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law
1, which required the Member States to provide for criminal sanctions in 
the case of the offences against envi ronmental law set out in the Framework 
Decision, on the grounds that th e power to impose such an  obligation on the Member 
States is a matter for a Community inst rument and the Commission had in fact 
proposed the adoption of such an instrument2. 
3. The Court found that although “as a general rule, neither criminal law nor the rules 
of criminal procedure fall with in the Community’s competence”3, “the 
last-mentioned finding does not prevent th e Community legislature, when the 
application of effective, proportionate and dissuasive criminal penalties by the 
competent national authorities is an essential measure  for combating serious 
environmental offences , from taking measures which relate to the criminal law of the 
Member States which it considers necessary in order to ensure that the rules  which it 
lays down on environmental protection are fully effective ”4. 
4. Consequently, Articles 1 to 7 of the Fr amework Decision – which deal with the 
definition of offences, the principle of th e obligation to impose criminal penalties, 
                                                 
1 OJ L 29, 5.2.2003, p. 55. 
2 Proposal for a Directive of the European Parliament and of the Council on the protection of the 
environment through criminal law (COM (2001) 13 9 of 13 March 2001, OJ C 180 E, 26.6.2001, and 
amended proposal (COM (2002) 544)). 
3 Paragraph 47 
4 Paragraph 48 
 
EN 3   EN the rules on participation and instigation, the level of  penalties, accompanying 
penalties and the specific rules on the liab ility of legal persons – which, “on account 
of both their aim and their content”, “have as their main purpose the protection of the 
environment”, “could have been properly  adopted on the basis of Article 175 EC”5. 
“In those circumstances, the entire framew ork decision, being indi visible, infringes 
Article 47 EU as it encroaches on the powers which Article 175 EC confers on the Community”
6, and should be annulled. Art 47 EU establishes the primacy of 
Community law over Title VI of the TEU. 
5. It should be noted that  the Court went further th an the proposals of its 
Advocate-General, who took the view that the Community legislature had the power to establish the principle of the use of criminal penalties against serious environmental offences but not to lay down in  detail and in concrete terms what the 
arrangements should be. 
1.2. Scope of the judgment of 13 September 2005 
6. The Court refers in its analysis to the tr aditional criterion of the aim and content of 
the act in order to establish whether the legal basis is correct. In this case, the Community policy concerned is environm ental protection. However the judgment 
lays down principles going far beyond the ca se in question. The same arguments can 
be applied in their entirety to the othe r common policies and to the four freedoms 
(freedom of movement of persons , goods, services and capital).  
7. However, the judgment makes it clear that criminal law as such does not constitute a 
Community policy, since Community action in  criminal matters may be based only 
on implicit powers associated with a sp ecific legal basis. Hence, appropriate 
measures of criminal law can be adopted on a Community basis only at sectoral level 
and only on condition that there is a clear need to combat serious shortcomings in the 
implementation of the Community’s objectives and to provide for criminal law 
measures to ensure the full effectiveness of a Community policy or the proper functioning of a freedom.  
8. From the point of view of subject matter,  in addition to enviro nmental protection the 
Court’s reasoning can therefore be applied to all Community policies and freedoms 
which involve binding legislation with which criminal penalties should be associated 
in order to ensure their effectiveness. 
9. The Court makes no distinction according to the nature of the criminal law measures. 
Its approach is functional. The basis on which the Community legislature may provide for measures of criminal law is th e necessity to ensure that Community rules 
and regulations are complied with.  
10. The Commission will have to determ ine, when submitting proposals, whether 
this test of necessity, is met on a case by case basis. When for a given sector, the 
Commission considers that criminal law measur es are required in order to ensure that 
Community law is fully effective, these measures may, depending on the needs of the 
sector in question, include the actual principle of resorting to criminal penalties, the 
                                                
 
5 Paragraph 51 
6 Paragraph 53 
 
EN 4   EN definition of the offence - that is, the cons tituent element of the offence – and, where 
appropriate the nature and level of the criminal penalties applicable7, or other aspects 
relating to criminal law. It is the speci fic requirement of the Community policy or 
freedom in question which constitutes the link with the legal basis of the EC Treaty which provides the justification for such measures. Again it is on a case by case 
basis, depending on necessity, that the Co mmission will determine the degree of 
Community involvement in the criminal fi eld, whilst giving priority as much as 
possible to horizontal measures not specific to the relevant sector. Thus, where the 
effectiveness of Community law so requires, Member States' freedom to choose the 
penalties they apply may, where appropriate, be subject to the framework set forth by 
the Community legislature. 
2. E
FFECTS OF THE COURT JUDGMENT  
2.1. General situation following the judgment 
11. The clarification by the C ourt judgment of the distri bution of powers between the 
first and the third pillar has led to the following situation: 
– The provisions of criminal law required  for the effective implementation of 
Community law are a matter for the TEC. This system brings to an end the double-text mechanism (directive or re gulation and framework decision) which 
has been used on several occasions in the past. In other words, either a criminal 
law provision specific to the matter in hand is needed to ensure the effectiveness of Community law, and it is  adopted under the first pillar only, or 
there does not appear to be a need to resort to the criminal law at Union level - or there are already adequate  horizontal provisions - and specific legislation is 
not introduced at European level.  
– The horizontal criminal law provisi ons aimed at encouraging police and 
judicial cooperation in the broad sense, including measures on the mutual 
recognition of judicial decisions, measures based on the principle of 
availability, and measures on the harmoni sation of criminal law in connection 
with the creation of the area of freedom,  security and justice not linked to the 
implementation of Community policies or  fundamental freedoms, fall within 
Title VI of the TEU. Specifically, it foll ows from the judgment of the Court 
that those aspects of criminal law a nd criminal procedure which require a 
horizontal approach do not in principl e fall within the scope of Community 
law. This would normally be the case fo r questions linked to general rules of 
criminal law and criminal procedure as  well as those related to police and 
judicial cooperation in criminal matters. 
2.2. Consistency of the Union’s criminal law policy 
Although the Community legislature may us e the criminal law to achieve its 
objectives, it may do so only if  two conditions – necessity and consistency - are met. 
                                                
 
7 In particular, by reference to the four levels of approximation of penalties habitually used following. 
conclusions of the JHA Council meeting of 24 and 25 April 2002). 
 
EN 5   EN 12. Necessity. Any use of measures of criminal law must be justified by the need to 
make the Community policy in question effect ive. In principle, responsibility for the 
proper application of Community law lies wi th the Member States. In some cases, 
however, it is necessary to direct the action of the Member States by specifying 
explicitly (i) the type of behaviour which c onstitutes a criminal offence and/or (ii) the 
type of penalties to be app lied and/or (iii) other criminal -law measures appropriate to 
the area concerned. Checks must be carried  out to establish necessity and the 
observance of the principles of subsidiari ty and proportionality at each of these 
stages. 
13. Consistency.  The criminal-law measures adopted  at sectoral level on a Community 
basis must respect the overall consistency of the Union’s system of criminal law, whether adopted on the basis of the first or the third pillar, to ensure that criminal provisions do not become fragmented and i ll-matched. If a sector seems to require 
specific rules in order to implement the objectives of the EC Treaty, the relationship between these specific rules and the horizontal rules should if necessary be clarified. Care must also be taken to ensure that the Member States or the persons concerned 
are not required to comply with conflic ting obligations. When using its right of 
initiative, the Commission will take the utmost care to ensure that this consistency is 
preserved. Parliament and the Council must also take account of this requirement in their own internal organisation. 
2.3. Consequences of the judgment for acts adopted and proposals pending. 
14. As a result of the Court’s judgment the fram ework decisions in a nnex are entirely or 
partly incorrect, since all or some of th eir provisions were adopted on the wrong 
legal basis. It is important for a number of reasons to re gularise these texts quickly 
by re-establishing the correct legal bases. Firstly, even when th e period for lodging 
an appeal has expired the inst itutions have a duty to restore their legality. This duty 
lies in the first inst ance with the Commission, as the gua rdian of the Treaties and the 
only body with the power to propose Community acts. However, an equal responsibility rests with the European Parliament and the Council, which are 
responsible for adopting these acts. The s econd reason concerns the imperatives of 
legal security, since the wrong legal basis of  the framework decisions could, in some 
cases, undermine the national implementing legislation. 
15. The Commission decided on 23 November to appeal to the Court of Justice for the 
annulment of the Council Framework D ecision 2005/667/JHA of 12 July 2005 to 
strengthen the criminal law framework for the enforcement of the law against 
ship-source pollution. This is the only case where the Commission has had the possibility to introduce an a ppeal for annulment for reasons  of procedural deadlines. 
In this case, the Commission considers that from a legal point of view the decision to 
appeal would complete the package of appr opriate measures to correct the situation 
in relation to the above mentioned framew ork decision. Ensuring that the rights of 
the Commission are preserved, the appeal s eeks to restore legal ity and provide the 
necessary legal certainty . The appeal will be withdraw n once the proposal aiming at 
correcting the legal basis for the framework decision in question is adopted.  
16. There are several ways in which existing law can be rectified in the light of the 
judgment. One approach would be to review  the existing instrume nts with the sole 
purpose of bringing them into line with th e distribution of powers between the first 
 
EN 6   EN and the third pillar as laid down in the Court judgment. In such a case, the 
Commission’s proposals would not contai n any provisions wh ich differed in 
substance from those of the acts adopted, ev en where the Commission felt that these 
acts were not satisfactory. This option offers  a quick and easy solution. It allows the 
substance of Community legislation to rema in unchanged and ensures legal certainty 
with regard to provisions that  are important to the realisa tion of an area of freedom, 
security and justice. This solution would work only if Parliament and the Council agree not to open discussions of substance during this sp ecial procedure. Such an 
approach accordingly requires the prior agreement of the three institutions. 
17. If such an agreement could not be reach ed, the Commission woul d make use of its 
power of proposal in order not  only to restore the correct  legal bases to acts which 
have been adopted but also to prioritise substantive so lutions in line with what it 
judges the Community interest to be. 
18. This alternative is redunda nt in the case of pending proposals. The Commission will 
therefore make the necessary changes to its proposals as and when required. These 
proposals will then follow the full decisi on-making procedure applicable to their 
legal basis. 
19. A list of the acts adopted and pending pr oposals potentially aff ected by the Court 
Decision and which require amendment is attached to this communication.  
 
EN 7   EN ANNEX  
List of texts affected by the CJEC judgment in Case C- 176/03  
Text  Legal basis to be used (TEC) 
Acts adopted  
Act annulled : Council Framework 
Decision 2003/80/JHA of 27 January 2003 on the protection of  the environment 
through criminal law (OJ L 29, 5.2.2005, p. 
55) Article 175(1)
8 
Council framework Decision of 29 May 
2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the 
introduction of the euro ( OJ L 140, 
14.6.2000, p. 1 ) and Council Framework 
Decision of 6 December 2001 amending 
Framework Decision 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the 
euro ( OJ L 329, 14.12.2001, p 3 ). Article 123(4) 
Council Framework Decision 
2001/413/JHA combating fraud and counterfeiting of non-cash means of 
payment (OJ L 149, 2.6.2001, p. 1)  Article 57(2) and Article 95  
Council Directive 91/308/EEC of 10 June 
1991 on prevention of the use of the financial system for the purpose of money 
laundering  (OJ L 166, 28.6.1991, p. 77) and 
Council Framework Decision 
2001/500/JHA of 26 June 2001 on money laundering, the identi fication, tracing, 
freezing, seizing and confiscation of instrumentalities and the proceeds of 
crime (OJ L 182, 5.7.2001, p.1)
 and  Article 47(2) and Article 95  
Directive defining the facilitation of 
unauthorised entry, transit and residence Articles 61(a) and 63(3)(b) 
                                                 
8 Using this legal basis, the Commission had tabled a proposal for a Directive on the protection of the 
environment through criminal law (COM (2001) 139 of 13.3.2001, OJ C 180 E, 26.6.2001) and 
amended proposal (COM (2002) 544). 
 
EN 8   EN and Council framework Decision on the 
strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence of 28 
November 2002  (OJ L 328, 5.12.2002, pp. 
17 and 1).  
Council Framework Decision 
2003/568/JHA of 22 July 2003 on combating corruption in the private sector  
(OJ L 192, 31.7.2003, p. 54) Article 95  
Council Framework Decision 
2005/222/JHA of 24 February 2005 on 
attacks against information systems (OJ L 
69, 16.3.2005, p. 67)  Article 95  
Directive 2005/35/EC of the European 
Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for 
infringements and 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 (OJ L 255, 30.9.2005, 
pp. 11 and 164)  Article 80(2) 
   [] 
Proposals pending9 
Proposal for a Directive of the European 
Parliament and of the Council on the criminal-law protection of the 
Community's financial interests (PIF), (OJ 
C 240E, 28.8.2001, p. 125)
10 Article 280(4) 
Proposal for a European Parliament and Article 95 
                                                 
9 For the record: Proposal for a Council Framework Decision on combating racism and xenophobia 
(COM proposal of 29.11.2001, OJ C 75 E, 23.6.2002, p. 269): the text of the proposed framework decision is in conformity with the distribution of powers between the pillars as set out in the Court 
judgment of 13 September 2005. If it was planned to introduce criminal penalties to combat 
discrimination, however, a Directive on the basis of Article 13 TEU would be necessary. 
 - Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision concerning 
the prevention and control of traffi cking in human organs and tissues  (OJ C 100, 26.4.2003, p.27), 
currently stalled, and the initiative of the Federal Rep ublic of Germany with a view to the adoption of a 
Council Framework Decision on criminal law protection against fraudulent or other unfair 
anti-competitive conduct in relation to the award of public contracts in the common market (OJ C 253, 
4.9.2000, p 3). 
10 The situation here is different in that the conven tions on the protection of the European Community’s 
financial interests are not directly called into questio n as a result of the judgment. Nevertheless, none of 
these instruments (the convention and the three protoc ols) has been ratified by all 25 Member States. 
 
EN 9   EN Council Directive on criminal measures 
aimed at ensuring the enforcement of intellectual property rights and for a Council framework decision to strengthen the criminal law framework to combat 
intellectual property offences (COM (2005) 
276 final)