OPINION OF ADVOCATE GENERAL

BOT

delivered on 10 September 2013 ( 1 )

Case C‑43/12

European Commission

v

European Parliament,

Council of the European Union

‛Directive 2011/82/EU — Cross-border exchange of information on road safety related traffic offences — Choice of legal basis — Article 87(2)(a) TFEU — Article 91(1)(c) TFEU’

1. By this action, the European Commission contests the legal basis used for the adoption of Directive 2011/82/EU of the European Parliament and of the Council of 25 October 2011 facilitating the cross-border exchange of information on road safety related traffic offences ( 2 ) (‘the directive’).

2. That directive establishes an information exchange system which permits the competent authority of the Member State in which a breach of the road traffic rules has been committed to obtain, from the Member State of registration, the data which will enable it to identify the person responsible for the offence established.

3. Initially, the Commission had based its Proposal for a Directive of the European Parliament and of the Council facilitating cross-border enforcement in the field of road safety ( 3 ) on Article 71(1)(c) EC, which now corresponds to Article 91(1)(c) TFEU.

4. The latter provision forms part of Title VI of Part Three of the FEU Treaty, relating to transport. It is worded as follows: ‘For the purpose of implementing Article 90, and taking into account the distinctive features of transport, the European Parliament and the Council [of the European Union] shall, acting in accordance with the ordinary legislative procedure and after consulting the [European] Economic and Social Committee and the Committee of the Regions [of the European Union], lay down: … (c) measures to improve transport safety; …’

5. After long and difficult negotiations leading to a reduction in the content of the directive, the Council considered that the directive should be adopted not within the framework of the common transport policy but on the basis of Article 87(2) TFEU, which forms part of Chapter 5 (‘Police Cooperation’) of Title V (‘Area of freedom, security and justice’) of Part Three of the FEU Treaty. With the agreement of the Parliament, it was that legal basis which was ultimately used.

6. Article 87(1) TFEU provides that ‘[t]he 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’.

7. Under Article 87(2) TFEU: ‘For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning: (a) the collection, storage, processing, analysis and exchange of relevant information; …’

8. In support of its view that the directive should have been based on Article 91(1)(c) TFEU, the Commission points out that the main objective of the directive is to improve road safety and that that objective falls within the scope of the common transport policy. The information exchange mechanism established by the directive is only a means of attaining that objective.

9. It also observes that the scope of Article 87(2) TFEU is limited to criminal matters, so that that provision can serve as a legal basis only for the creation of an information exchange system concerning criminal offences. In order to define what is covered by the concept of criminal matters in EU law, reference must be made to the classifications used in national law. Only offences which are formally a part of the criminal law of the Member States may therefore be the subject of an exchange of information under Article 87(2) TFEU.

10. In the light of the view thus adopted by the Commission of the scope of that provision, the information exchange mechanism established by the directive does not, according to it, come under police cooperation within the meaning of Article 87 TFEU. The road traffic offences to which the directive refers are not exclusively classified as ‘criminal offences’ in the laws of the Member States. An examination of the legal systems of those States thus shows that such offences are covered sometimes by the administrative law and sometimes by the criminal law of those States. The finding that road traffic offences may be regarded in some States as constituting administrative offences therefore precludes the European Union from establishing, on the basis of Article 87(2) TFEU, an information exchange system relating to road traffic offences.

11. The Parliament and the Council dispute the approach taken by the Commission, as do all the Member States which have intervened in the present proceedings. ( 4 )

12. For the reasons I shall now set out, I also think that the Commission takes too restrictive a view of the scope of Article 87(2) TFEU and that that provision did indeed constitute the correct legal basis for the information exchange system established by the directive.

I – My assessment

13. The present action seeks a ruling as to whether or not an information exchange system which makes it possible to identify persons who have committed a road traffic offence in a Member State other than their State of registration falls within the scope of police cooperation as governed by Article 87 TFEU, even though such a system is designed to improve road safety and the offences at issue are not classified as ‘criminal offences’ in all the Member States.

14. I would point out first of all, even though it may be considered obvious, that the determination of the appropriate legal basis for the adoption of the directive must not in any way be influenced by the institutional particularities which still, after the Treaty of Lisbon, distinguish Title V in Part Three of the FEU Treaty, relating to the Area of Freedom, Security and Justice from the other sectoral policies. I am thinking, in particular, of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the EU and FEU Treaties, and also of Protocol (No 22) on the position of Denmark, annexed to the same treaties.

15. According to settled case-law, the choice of the legal basis for a Union measure must rest on objective factors amenable to judicial review, which include the aim and content of that measure. If examination of a measure reveals that it pursues two aims or that it has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely, that required by the main or predominant aim or component. ( 5 )

16. As stated in Article 1, the directive ‘aims to ensure a high level of protection for all road users in the Union by facilitating the cross-border exchange of information on road safety related traffic offences and thereby the enforcement of sanctions, where those offences are committed with a vehicle registered in a Member State other than the Member State where the offence took place’.

17. The EU legislature, by thus aiming to ensure a high level of protection for all road users in the Union, is without a doubt pursuing the objective of improving the safety which those users must enjoy when they take to the roads of the Member States, by reducing the number of fatalities, injuries and material damage. That objective is stated inter alia in recitals 1, 6, 15 and 26 in the preamble to the directive.

18. It is true that, as stated in recital 1 in the preamble to the directive, ‘[i]mproving road safety is a prime objective of the Union’s transport policy’. It may, moreover, be inferred from the case-law of the Court of Justice that the EU legislature is entitled, under Article 91(1)(c) TFEU, to adopt common provisions to improve road safety. ( 6 )

19. None the less, the finding that the directive is designed to improve road safety does not seem to me to be sufficient to bring it within the scope of transport policy and to exclude it from the scope of police cooperation governed by Article 87 TFEU.

20. I think that the objective of ensuring a high level of protection for all road users in the Union may also be related to the objective pursued in Title V of Part Three of the FEU Treaty, concerning the Area of Freedom, Security and Justice, that is, in the words of Article 67(3) TFEU, to ensure a high level of security.

21. Moreover, the implementation of police cooperation under Article 87 TFEU, by permitting more effective enforcement in relation to a category of offences, may indeed be intended to achieve an objective of public interest also pursued in connection with a sectoral policy such as the transport policy.

22. I note in that regard that, in the related area of judicial cooperation in criminal matters, Article 83(2) TFEU allows the Union to establish minimum rules with regard to the definition of criminal offences and sanctions, if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures. ( 7 ) The existence of a legal basis permitting the harmonisation of the criminal law of the Member States when that is necessary in order to attain the objectives pursued in connection with sectoral policies shows that the boundary between, on the one hand, the legal bases of the sectoral policies and, on the other, those which make it possible to establish police or judicial cooperation under Title V of Part Three of the FEU Treaty, is not impenetrable. Accordingly, EU legislation designed to establish minimum rules with regard to the definition of road traffic criminal offences and sanctions is indeed designed to improve road safety but still falls within the scope of Article 83(2) TFEU.

23. Following this line of thought, I shall have the opportunity later on to refer to a measure of secondary legislation concerning judicial cooperation in criminal matters, namely Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, ( 8 ) which, by permitting the recognition of pecuniary sanctions imposed in respect of road traffic offences, unquestionably contributes to the objective of improving road safety.

24. It must therefore be concluded from these considerations that judicial cooperation in criminal matters, as conceived by the Treaty of Lisbon, may pursue objectives of public interest falling within the scope of sectoral policies. I do not see why it should be any different for police cooperation.

25. It follows from these initial considerations that the finding that the directive seeks to improve road safety is not, in itself, decisive in deciding which of Article 87(2) TFEU or Article 91(1)(c) TFEU constitutes the correct legal basis of the directive.

26. It is therefore necessary to examine in depth the aim pursued by the directive and not restrict ourselves to the declared objective of improving road safety.

27. By deciding to adopt the directive, the EU legislature started from a single premiss, namely that the development of the freedom of movement of persons within the Union is often synonymous with impunity in respect of road traffic offences.

28. As the Explanatory Memorandum of the aforementioned proposal for a directive points out, the need to establish an information exchange system stems from the fact that traffic offences are often not sanctioned when they are committed with a vehicle which is registered in a Member State other than the Member State of the offence. The problem is particularly acute for offences that are recorded automatically using cameras, where there is no direct contact between the driver and the police. ( 9 )

29. In recital 2 in the preamble to the directive, the EU legislature thus finds that ‘sanctions in the form of financial penalties for certain road traffic offences are often not enforced if those offences are committed with a vehicle which is registered in a Member State other than the Member State where the offence took place’. On the basis of that finding, the ‘Directive aims to ensure that even in such cases, the effectiveness of the investigation of road safety related traffic offences should be ensured’.

30. According to recital 6 in the preamble to the directive, ‘[i]n order to improve road safety throughout the Union and to ensure equal treatment of drivers, namely resident and non-resident offenders, enforcement should be facilitated irrespective of the Member State of registration of the vehicle. To this end, a system of cross-border exchange of information should be put in place for certain identified road safety related traffic offences, regardless of their administrative or criminal nature under the law of the Member State concerned, granting the Member State of the offence access to vehicle registration data (VRD) of the Member State of registration’.

31. In addition, according to recital 7 in the preamble to the directive, ‘[a] more efficient cross-border exchange of VRD, which should facilitate the identification of persons suspected of committing a road safety related traffic offence, may increase the deterrent effect and induce more cautious behaviour by the driver of a vehicle that is registered in a Member State other than the Member State of the offence, thereby preventing casualties due to road traffic accidents’.

32. Those recitals express the main aim of the directive, namely to enable more effective enforcement in relation to road traffic offences through the creation of a police cooperation process. That process is constituted by an exchange of information making it possible to identify the persons responsible for those road traffic offences, which is a prerequisite for follow-up proceedings and sanctioning by the competent authorities of the Member States.

33. That more effective enforcement in relation to road traffic offences will, by its deterrent effect, induce non-resident drivers to observe the road traffic rules of the Member States through which they travel and thus lead to an improvement in road safety. That is, in any event, the intention expressed by the EU legislature. Improved road safety is therefore the ultimate aim, the desired effect, and more effective enforcement in relation to road traffic offences the most immediate and direct aim, the two objectives being, of course, closely linked.

34. The aim which seems to me decisive for establishing which is the correct legal basis of the directive is therefore the aim of enabling more effective enforcement in relation to road traffic offences by introducing a mechanism for cooperation between the competent national law enforcement authorities. A measure which has that as its main aim seems to me to come under police cooperation within the meaning of Article 87 TFEU.

35. Such a measure is fully part of European Union action designed to construct an Area of Freedom, Security and Justice. Although the term ‘freedom’ contained in that expression unquestionably refers to the freedom of movement of persons within the European Union, its meaning does not stop there. ( 10 ) As stated in the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice, ( 11 ) adopted by the ‘Justice and Home Affairs’ Council of 3 December 1998, it is also ‘freedom to live in a law-abiding environment in the knowledge that public authorities are using everything in their individual and collective power (nationally, at the level of the Union and beyond) to combat and contain those who seek to deny or abuse that freedom’. ( 12 ) Moreover, according to that same document, the ambition of the area of‘justice’ is ‘to give citizens a common sense of justice throughout the Union’. ( 13 ) As recital 6 in the preamble to the directive states, inter alia, it is precisely the feeling of injustice which may be caused by the impunity of drivers of vehicles registered in a Member State other than the Member State of the offence that the directive seeks to remedy.

36. Let us see, now, whether the content of the directive confirms the choice of Article 87(2) TFEU as its correct legal basis.

37. Under Article 2, the directive applies to eight road safety related traffic offences, namely speeding, non-use of a seat-belt, failing to stop at a red traffic-light, drink-driving, driving under the influence of drugs, failing to wear a safety helmet, use of a forbidden lane and illegally using a mobile telephone or any other communication devices while driving.

38. Since the constituent elements of those offences are not harmonised at EU level, ( 14 ) they are determined by the Member States, ( 15 ) as are the sanctions applicable to those offences.

39. The information exchange system established by the directive takes effect, therefore, not as a supplement to measures which have been adopted by the European Union with the aim of harmonising the constituent elements of certain offences and their sanctions, but only in order to enable a better application of the road traffic rules defined independently by each of the Member States.

40. As an examination of the content of the directive reveals, the sole aim of the directive is to establish a system permitting the competent law enforcement authorities of the Member States to exchange information concerning road traffic offences. It is therefore a question of making available to the national authorities responsible for enforcing the national road traffic regulations a tool designed to identify foreign offenders. That tool enables the Member States to improve the means at their disposal at the stage of investigation of a road offence, by enabling them to obtain the information necessary to identify the perpetrator of that offence and therefore to impose a sanction.

41. The core of the system put in place to help the Member States to enforce the law on road traffic offences more effectively is contained in Articles 4 and 5 of the directive.

42. Article 4 of the directive relates to the procedure for the exchange of information between Member States. Article 4(1) provides that, for the investigation of the road safety related traffic offences referred to in Article 2 of the directive, the Member States are to allow other Member States’ national contact points access to their national VRD, with the power to conduct automated searches on the data relating to vehicles and to their owners or holders. The first subparagraph of Article 4(2) of the directive states that those searches ‘shall be conducted by the national contact point of the Member State of the offence using a full registration number’.

43. The final subparagraph of Article 4(2) of the directive provides that ‘[t]he Member State of the offence shall, under [the] Directive, use the data obtained in order to establish who is personally liable for road safety related traffic offences referred to in Articles 2 and 3’.

44. Article 4(4) of the directive provides, in addition, that, in order to exchange information, the Member States should use inter alia the software application especially designed for the purposes of Article 12 of Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime. ( 16 ) This is an indication that the directive constitutes a further development, in respect of road traffic offences, of other police cooperation instruments, such as the Prüm decisions, which are designed inter alia to combat terrorism and cross-border crime. ( 17 ) That idea also appears in recitals 2, 9 and 10 in the preamble to the directive.

45. Once the person suspected of having committed the road traffic offence has been identified, it is for the Member State of the offence to decide whether or not to initiate follow-up proceedings. If it decides to do so, Article 5 of the directive lays down the procedure for notifying that person of the offence. Under Article 5(2) of the directive, the information letter shall contain ‘any relevant information, notably the nature of the … offence …, the place, date and time of the offence, the title of the texts of the national law infringed and the sanction and, where appropriate, data concerning the device used for detecting the offence’. Moreover, Article 5(3) of the directive provides that the Member State of the offence ‘for the purpose of ensuring the respect of fundamental rights, sends the information letter in the language of the registration document, if available, or in one of the official languages of the Member State of registration’.

46. Articles 4 and 5 of the directive therefore put in place a standard police cooperation procedure, namely a system for exchanging information between competent law enforcement authorities designed to bring to a successful conclusion police inquiries into road traffic offences and to enable those offences to be punished by identifying the persons responsible.

47. The Court’s case-law contains guidance for understanding what falls within the scope of police cooperation. Thus, in its judgment in Ireland v Parliament and Council, ( 18 ) the Court stated, in relation to Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, ( 19 ) that that directive ‘… regulates operations which are independent of the implementation of any police and judicial cooperation in criminal matters’. The Court notes, in that regard, that ‘[i]t harmonises neither the issue of access to data by the competent national law enforcement authorities nor that relating to the use and exchange of those data between those authorities’ and observes that ‘those matters fall, in principle, within the area covered by Title VI of the EU Treaty’. ( 20 )

48. Moreover, in its judgment in United Kingdom v Council, ( 21 ) the Court pointed out that Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences ( 22 )‘pursues objectives which, as such, fall within the scope of police cooperation’. ( 23 ) As regards the content of Decision 2008/633, the Court noted that it ‘relates both to the rules on designation, by the Member States, of the authorities responsible for internal security which are authorised to consult the VIS and to the conditions governing access, communication and keeping of data used for the abovementioned purposes’. ( 24 ) It inferred from this that ‘the provisions of that decision may, in principle, be regarded as setting up a form of police cooperation’. ( 25 ) The Court relied on those details relating to the purpose and content of Decision 2008/633 to conclude that, from the point of view of the choice of legal basis, that decision did indeed fall within the field of police cooperation, although it also constituted a measure developing the provisions of the Schengen acquis relating to the common visa policy. ( 26 )

49. In my view, it can be inferred from the guidance thus given in the aforementioned judgments in Ireland v Parliament and Council and United Kingdom v Council that the directive falls within the area of police cooperation and was correctly adopted on the basis of Article 87(2) TFEU.

50. It should be noted, moreover, that, since it is a question of police cooperation under Article 87 TFEU, Article 7 of the directive, which relates to data protection, provides for the application of Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, ( 27 ) to data processed within the framework of the information exchange system established by the directive.

51. Finally, a reading of Article 11 of the directive confirms that the establishment of an exchange of information relating to the road traffic offences defined by the Member States constitutes the main component of the directive. That article refers to measures which may, in the future, be adopted by the European Union, such as common standards for automatic checking equipment and for procedures, or even the harmonisation of road traffic rules. However, that is not the position under EU law, which precludes understanding the information exchange system established by the directive as a measure to supplement measures to harmonise road traffic rules adopted by the European Union within the framework of the common transport policy. To put it another way, that system does not constitute a measure which is ancillary to other measures adopted by the European Union within the framework of the common transport policy. That system is therefore not designed to ensure the full effectiveness of rules laid down by the European Union in that field. Moreover, I have already pointed out that the directive harmonises neither the constituent elements of road traffic offences nor the sanctions applicable to them, which remain within the jurisdiction of the Member States. For those reasons, reasoning based on the grounds set out by the Court in its judgments of 13 September 2005 in Commission v Council ( 28 ) and 23 October 2007 in Commission v Council ( 29 ) does not seem to me capable of justifying the use of Article 91(1)(c) TFEU as the legal basis of the directive. I also note that those judgments were delivered in the legal context which prevailed before the Treaty of Lisbon, that context being characterised by the priority which Article 47 EU accorded to the legal bases relating to sectoral policies.

52. The system for exchanging information relating to road traffic offences established by the directive, as an instrument of police cooperation unconnected with any measure to harmonise offences and sanctions adopted by the European Union within the framework of the common transport policy, therefore falls, in my view, within the scope of Article 87(2) TFEU.

53. To that analysis, the Commission responds that Article 87(2) TFEU applies only to police cooperation relating to criminal offences which are classified as such in the laws of the Member States. Therefore, since road traffic offences fall sometimes within the scope of the administrative law and sometimes of the criminal law of the Member States, ( 30 ) Article 87 TFEU cannot constitute the correct legal basis of a system for exchanging information concerning those offences.

54. I do not share the Commission’s view, for several reasons.

55. In the first place, the Commission’s restrictive view of the scope of Article 87(2) TFEU is not adequately supported by the very title of Chapter 5 in Title V of Part Three of the FEU Treaty, which is limited to ‘police cooperation’, without expressly stating that that cooperation concerns only criminal matters.

56. As for the wording of Article 87(1) TFEU, it is particularly broad since it states that ‘[t]he Union shall establish police cooperation involving all the Member States’ competent authorities’. ( 31 ) The reference to the fact that those authorities include ‘police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences’ expresses the idea that those services are mentioned as examples and that the list is not exhaustive. Moreover, as is shown by other language versions of the provision at issue, the reference to criminal offences seems to relate only to ‘other … law enforcement services’, but not to concern the police and customs, let alone ‘all the Member States’ competent authorities’. ( 32 )

57. The reading of Article 87(1) TFEU therefore by no means precludes the possibility that police cooperation falling within the scope of that provision may be developed between authorities whose function is not to apply the criminal law in the Member States, since they perform tasks falling within the sphere of policing in the broad sense, whether administrative or judicial. ( 33 ) In other words, the police cooperation referred to in Article 87(1) TFEU must be understood to be functional, that is to say, it relates to cooperation between the Member State authorities responsible for preventing, detecting and sanctioning offences.

58. It is therefore wrong to state, as the Commission does, that a formal definition of the scope of Article 87 TFEU, to the effect that it concerns only criminal offences classified as such in the different legal systems of the Member States, is adequately supported by the wording of that article.

59. An examination of other European Union measures concerning the exchange of information concerning police cooperation also argues in favour of a functional approach, according to which that cooperation applies more widely to the maintenance of law and order and the prevention of offences, without being expressly limited to criminal offences classified as such in the laws of the Member States.

60. In addition to the first subparagraph of Article 12(1) of Decision 2008/615, to which I have previously referred, ( 34 ) which provides that automated searching of vehicle registration data is carried out ‘[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’, one may also cite Council Decision 2009/917/JHA of 30 November 2009 on the use of information technology for customs purposes, ( 35 ) which provides, in Article 1(2), that the ‘aim of the Customs Information System … shall be to assist in preventing, investigating and prosecuting serious contraventions of national laws by making information available more rapidly, thereby increasing the effectiveness of the cooperation and control procedures of the customs administrations of the Member States’.

61. In the second place, the Commission’s formal interpretation raises a number of problems. First, it runs counter to the requirement that European Law should be applied uniformly, by introducing a heterogeneous element to the substantive and temporal scope of police cooperation procedures such as that provided for by the directive. In fact, the application of such a procedure would then depend on the classification given at national level to each of the offences to which Article 2 of the directive refers. Moreover, the classifications used by the Member States are likely to vary over time, which renders the directive’s scope of application uncertain. In addition, within a Member State, the classification of a road traffic offence may evolve during the proceedings and an administrative offence may thus become a criminal offence, for example if the offender does not pay the fine imposed.

62. To limit the scope of Article 87 TFEU to criminal offences classified as such in the laws of the Member States also has the effect of seriously reducing the effectiveness of that article. If the Commission’s argument is followed, not only could the article not be used if police cooperation contributes to a public interest falling within the scope of a sectoral policy, but its application would be limited to offences which are formally part of the criminal law of all the Member States.

63. I would point out, in that regard, that to adopt a functional approach to the scope of Article 87 TFEU guarantees the effectiveness of that article while not compromising, contrary to what the Commission claims, the effectiveness of Article 91(1)(c) TFEU. The latter provision may provide the basis for numerous measures contributing to improved road safety, such as measures relating to road conditions and road maintenance, to technical inspections of vehicles, to the working hours and training of lorry drivers, or even to the harmonisation of road traffic regulations.

64. In the third place, even if the view had to be adopted that police cooperation under Article 87 TFEU concerned only criminal matters, that concept must, in any event, be defined functionally, not formally with reference to national classifications as the Commission maintains. That functional approach is required on account of the requirement that EU law should be applied uniformly, which I have mentioned previously, and in order to ensure the effectiveness of the police cooperation which has been established. From that point of view, police cooperation concerning offences giving rise to penalties which are both punitive and deterrent may be based on Article 87 TFEU. It is therefore necessary to pay heed to whether the ‘purpose’ of the penalties applicable in the case of road traffic offences is ‘punitive’, ( 36 ) rather than to whether those offences and penalties belong to the criminal law of the Member States.

65. I consider, in that regard, that the functional approach adopted by the European Court of Human Rights in order to define what falls within the scope of criminal matters in connection with Article 6 of the European Convention for the Protection of Human Rights and fundamental Freedoms, signed in Rome on 4 November 1950, may serve as a source of inspiration for defining the scope of Article 87 TFEU. I refer more particularly to the judgment of 21 February 1984 of the European Court of Human Rights in Öztürk v Germany, ( 37 ) which relates to road traffic offences. Following that functional approach, there is no doubt that the road traffic offences listed in Article 2 of the directive are of a criminal nature in so far as they give rise in the Member States to penalties which are both punitive and deterrent. It therefore does not matter whether those penalties are part of the corpus of administrative offences or the criminal law of the Member States.

66. In the fourth place, the Commission’s formal definition has the major disadvantage of excluding a whole area of crime from the scope of police cooperation, in the present case road traffic crime. That form of crime is often characterised as relatively ‘minor’ offences ( 38 ) which are not necessarily part of the criminal law of the Member States, but which may give rise, for reasons of effectiveness, to the imposition of a penalty by an administrative authority and not by a criminal court. There is nothing to indicate that the framers of the FEU Treaty intended to limit the scope of Article 87(2)(a) TFEU to offences which, owing to their seriousness, fall within the criminal law, not the corpus of administrative offences, of the Member States.

67. I would also point out that, although they form part sometimes of the corpus of administrative offences and sometimes of the criminal law of the Member States, road traffic offences are already included in secondary legislation adopted within the framework of judicial cooperation in criminal matters. In that regard, it is of interest to refer to Framework Decision 2005/214, which I have mentioned previously, ( 39 ) which supplements the information exchange system established by the directive.

68. Recital 4 in the preamble to that framework decision states that it ‘should also cover financial penalties imposed in respect of road traffic offences’. Under Article 5(1) of that framework decision, its scope covers, inter alia, offences relating to ‘conduct which infringes road traffic regulations’. Framework Decision 2005/214 does not make the mutual recognition of financial penalties imposed in respect of road traffic offences subject to the condition that those offences are formally part of the criminal law of the Member States.

69. In Baláž, ( 40 ) which is currently pending before the Court at the time of writing, the Commission defends, however, a formal approach similar to that which it takes in support of the present action. That case concerns the interpretation of the term ‘court having jurisdiction in particular in criminal matters’ referred to in Article 1(a)(iii) of Framework Decision 2005/214. According to that provision, which relates inter alia to road traffic offences, a decision which must be the subject of mutual recognition is defined as ‘a final decision requiring a financial penalty to be paid by a natural or legal person where the decision was made by … an authority of the issuing State other than a court in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law, provided that the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’. ( 41 ) In its observations, the Commission submits that the condition thus laid down in that provision is fulfilled if the person concerned has the opportunity to bring the case before a court which rules on criminal offences which the Member States formally classify as such. In the Opinion which she delivered on 18 July 2013 in Baláž, Advocate General Sharpston considers that the interpretation proposed by the Commission cannot be adopted, in essence taking the view that such an interpretation runs counter to the EU legislature’s intention to include financial penalties in the mutual recognition procedure, irrespective of whether the offences to which they apply are classified as ‘criminal’ in the Member States concerned. ( 42 ) This analysis concurs with the functional approach which I advocate in the present proceedings.

70. In 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.