Communication from the Commission to the European Parliament and the Council on the implications of the Court’s judgment of 13 September 2005 (Case C 176/03 Commission v Council)
Date: 2005-11-23
Institutions: European Commission
Subjects: EU law - national law, criminal law, environmental law, environmental protection, penalty

COMMISSION OF THE EUROPEAN 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 COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

on the implications of the Court’s judgment of 13 September 2005 (Case C-176/03 
Commission v Council) 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

on the implications of the Court’s judgment 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  clarification  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 from 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  correct  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  the  future  use  of  the  Commission’s  right  of 
initiative. 

1. 

CONTENT 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. 

3. 

4. 

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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 law1, which required the Member States to provide for criminal sanctions in 
the  case  of  the  offences  against  environmental  law  set  out  in  the  Framework 
Decision, on the grounds that the power to impose such an obligation on the Member 
States  is  a  matter  for  a  Community  instrument  and  the  Commission  had  in  fact 
proposed the adoption of such an instrument2. 

fall  within 

The Court found that although “as a general rule, neither criminal law nor the rules 
the  Community’s  competence”3,  “the 
of  criminal  procedure 
last-mentioned  finding  does  not  prevent  the  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. 

Consequently,  Articles  1  to  7  of  the  Framework  Decision  –  which  deal  with  the 
definition  of  offences,  the  principle  of  the  obligation  to  impose  criminal  penalties, 

OJ L 29, 5.2.2003, p. 55. 
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, 26.6.2001, and 
amended proposal (COM (2002) 544)). 
Paragraph 47 
Paragraph 48 

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the  rules  on  participation  and  instigation,  the  level  of  penalties,  accompanying 
penalties and the specific rules on the liability 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  framework  decision,  being  indivisible,  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  than  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. 

7. 

8. 

9. 

The Court refers in its analysis to the traditional 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  environmental  protection.  However  the  judgment 
lays down principles going far beyond the case in question. The same arguments can 
be  applied  in  their  entirety  to  the  other  common  policies  and  to  the  four  freedoms 
(freedom of movement of persons, goods, services and capital).  

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  specific  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.  

From the point of view of subject matter, in addition to environmental 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. 

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 the necessity to ensure that Community rules 
and regulations are complied with.  

10.  The Commission will have to determine, 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 measures 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 

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Paragraph 51 
Paragraph 53 

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definition of the offence - that is, the constituent 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  specific  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  Commission  will  determine  the  degree  of 
Community  involvement  in  the  criminal  field,  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. 

EFFECTS OF THE COURT JUDGMENT 

2.1. 

General situation following the judgment 

11. 

The  clarification  by  the  Court  judgment  of  the  distribution  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 regulation 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  provisions  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 harmonisation 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  follows  from  the  judgment  of  the  Court 
that  those  aspects  of  criminal  law  and  criminal  procedure  which  require  a 
horizontal  approach  do  not  in  principle  fall  within  the  scope  of  Community 
law. This would normally be the case for 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  use  the  criminal  law  to  achieve  its 
objectives, it may do so only if two conditions – necessity and consistency - are met. 

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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). 

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12. 

13. 

Necessity.  Any  use  of  measures  of  criminal  law  must  be  justified  by  the  need  to 
make the Community policy in question effective. In principle, responsibility for the 
proper  application  of  Community  law  lies  with  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 constitutes a criminal offence and/or (ii) the 
type of penalties to be applied 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  subsidiarity  and  proportionality  at  each  of  these 
stages. 

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  ill-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  conflicting  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. 

15. 

As a result of the Court’s judgment the framework decisions in annex are entirely or 
partly  incorrect,  since  all  or  some  of  their  provisions  were  adopted  on  the  wrong 
legal basis. It is important for a number of reasons to regularise these texts quickly 
by re-establishing the correct legal bases. Firstly, even when the period for lodging 
an appeal has expired the institutions have a duty to restore their legality. This duty 
lies in the first instance with the Commission, as the guardian 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  second  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. 

The Commission decided on 23 November to appeal to the Court of Justice for the 
annulment  of  the  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.  This  is  the  only  case  where  the  Commission  has  had  the 
possibility to introduce an appeal 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 appropriate measures to correct the situation 
in  relation  to  the  above  mentioned  framework  decision.  Ensuring  that  the  rights  of 
the  Commission  are  preserved,  the  appeal  seeks  to  restore  legality  and  provide  the 
necessary legal certainty. The appeal will be withdrawn 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  instruments  with  the  sole 
purpose of bringing them into line with the distribution of powers between the first 

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and  the  third  pillar  as  laid  down  in  the  Court  judgment.  In  such  a  case,  the 
Commission’s  proposals  would  not  contain  any  provisions  which  differed  in 
substance from those of the acts adopted, even 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 remain unchanged and ensures legal certainty 
with regard to provisions that are important to the realisation 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  special  procedure.  Such  an 
approach accordingly requires the prior agreement of the three institutions. 

17. 

18. 

If such an agreement could not be reached, the Commission would 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  solutions  in  line  with  what  it 
judges the Community interest to be. 

This alternative is redundant 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  decision-making  procedure  applicable  to  their 
legal basis. 

19. 

A  list  of  the  acts  adopted  and  pending  proposals  potentially  affected  by  the  Court 
Decision and which require amendment is attached to this communication.  

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ANNEX  

List of texts affected by the CJEC judgment in Case C- 176/03 

Text 

Legal basis to be used (TEC) 

Acts adopted 

Article 175(1)8 

Article 123(4) 

Article 57(2) and Article 95  

Article 47(2) and Article 95  

annulled:  Council 

Act 
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) 

in  connection  with 

Council  framework  Decision  of  29  May 
2000  on  increasing  protection  by  criminal 
penalties  and  other  sanctions  against 
counterfeiting 
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). 

Decision 
Framework 
Council 
2001/413/JHA 
and 
combating 
counterfeiting  of  non-cash  means  of 
payment (OJ L 149, 2.6.2001, p. 1) 

fraud 

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 
Decision 
Framework 
Council 
2001/500/JHA  of  26  June  2001  on  money 
laundering, 
tracing, 
identification, 
seizing  and  confiscation  of 
freezing, 
the  proceeds  of 
instrumentalities  and 
crime (OJ L 182, 5.7.2001, p.1) and  

the 

Directive  defining 
facilitation  of 
unauthorised  entry,  transit  and  residence 

the 

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). 

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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 
Decision 
Framework 
2003/568/JHA  of  22  July  2003  on 
combating corruption in the private sector 
(OJ L 192, 31.7.2003, p. 54) 

Article 95  

Decision 
Framework 
Council 
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 
law  against 
ship-source pollution (OJ L 255, 30.9.2005, 
pp. 11 and 164) 

the 

Article 80(2) 

[] 

Proposals pending9 

Proposal  for  a  Directive  of  the  European 
Parliament  and  of  the  Council  on  the 
criminal-law 
the 
Community's financial interests (PIF), (OJ 
C 240E, 28.8.2001, p. 125)10 

protection 

of 

Article 280(4) 

Proposal  for  a  European  Parliament  and  Article 95 

9 

10 

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  trafficking  in  human  organs  and  tissues  (OJ  C  100,  26.4.2003,  p.27), 
currently stalled, and the initiative of the Federal Republic 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). 
The situation here is different in that the conventions on the protection of the European Community’s 
financial interests are not directly called into question as a result of the judgment. Nevertheless, none of 
these instruments (the convention and the three protocols) has been ratified by all 25 Member States. 

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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) 

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