Case C-176/03: Action brought on 15 April 2003 by the Commission of the European Communities against the Council of the European Union
Date: 2003-06-07
Institutions: Court of Justice
Subjects: Council of the European Union, European Commission, action for annulment (EU), environmental protection, infringement of EU law, penalty

7.6.2003

EN

Official Journal of the European Union

C 135/21

Action brought on 15 April 2003 by the Commission of
the European Communities against the Council of the
European Union

(Case C-176/03)

(2003/C 135/31)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 15 April 2003 by the Commission of the European
Communities, represented by J.-F. Pasquier and W. Bog-
ensberger, acting as Agents, with an address for service in
Luxembourg.

The Commission of the European Communities claims that
the Court should:

— declare that the Council Framework Decision of 27 Janu-
ary 2003 on the protection of the environment through
criminal law (1) is unlawful;

— annul that framework decision;

— order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The action is based on Article 35(6) of the Treaty on European
Union.

The Commission unreservedly supports the objectives of the
framework decision but disputes the legal basis adopted in
order to provide for the measures in question, namely the
Treaty on European Union and in particular Articles 29, 31(e)
and 34(2)(b) of that treaty. The measures in question are
clearly matters of Community competence. The choice of
legal basis is important in this case because of the special
institutional features of Title VI of the Treaty on European
Union which, inter alia, does not have any equivalent to the
infringement procedure.

The choice of legal basis of an act must, according to the case-
law, be based on objective criteria that are susceptible to
judicial review, as regards in particular the purpose and content
of the act.

In the present case, both the purpose and the content of
the framework decision manifestly fall within the scope of
Community competencies. The aim of the framework decision
is to protect
the environment by imposing penalties on
infringements adversely affecting it, which corresponds to
Community competencies such as those referred to in Title XIX
of the EC Treaty (Articles 174 to 176) and by Article 6 of that

treaty. The same is true of the content of the framework
decision. The matters which Articles 2 and 3 of the framework
decision require Member States to regard as environmental
offences refer, for the most part,
to actions covered by
Community law.

Article 47 of the Treaty on European union lays down the
primacy of Community provisions and it is therefore not
legally possible to adopt acts on the basis of that treaty if there
is Community competence to do so.

The Commission also claims that the Communities have
competence to require the Member States to impose criminal
penalties where that is necessary in order to guarantee the
effect and efficacy of Community law.

In that regard, the Commission submits, first, that according
to settled case-law of the Court of Justice, as set out for
example in Case 68/88 Commission v Greece [1989] ECR
2966,
the Member States must ensure that infringements
of Community law are penalised under conditions, both
procedural and substantive, which are analogous to those
applicable to infringements of national
law of a similar
nature and importance and which make the penalty effective,
proportionate and dissuasive. The Member States may there-
fore be required to provide criminal penalties for infringements
of Community law. The Community measure may even itself
define the types of penalties which the Member States may
establish (see, for example, Article 31 of Council Regulation
(EEC) No 2847/93 of 12 October 1993 establishing a control
system applicable to the common fisheries policy (2).

The Commission observes, next, that as Community law
currently stands, if the Community legislature considers that
compliance with the rules which it lays down can be guaran-
teed only by the imposition of criminal penalties, it has power
to require the Member States to provide for such penalties.

(1) Framework Decision 2003/80/JHI, OJ L 29, 5.2.2003, p. 55.
(2) OJ L 261, 20.10.1993, p. 1.

Action brought on 28 April 2003 by the Kingdom
of Belgium against the Commission of the European
Communities

(Case C-182/03)

(2003/C 135/32)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 28 April 2003 by the Kingdom of Belgium,
represented by A. Snoecx, acting as Agent, assisted by P. Kelley,
B. van der Walle de Ghelcke and J. Wouters, avocats.