Commission of the European Communities v Council of the European Union.
Date: 2007-10-23
50. Lastly, the Council observes that, in Case C‑176/03 Commission  v Council , the Court held that, in the light of their aim and content, the Community was competent to adopt Articles 1 to 7 of Framework Decision 2003/80 and that it would therefore have excluded Article 8 on jurisdiction and Article 9 on extraditions and prosecutions from that sphere of competence. Likewise, in the present case, Articles 7, 8 and 9 of Framework Decision 2005/667 cover areas in respect of which the EC Treaty has not conferred any competence on the Community.
52. Under Article 47 EU, none of the provisions of the EC Treaty is to be affected by a provision of the EU Treaty. The same rule is laid down in the first paragraph of Article 29 EU, which introduces Title VI of the EU Treaty, entitled ‘Provisions on police and judicial cooperation in criminal matters’.
53. It is the task of the Court to ensure that acts which, according to the Council, fall within the scope of Title VI do not encroach upon the powers conferred by the EC Treaty on the Community (see Case C‑170/96 Commission  v Council  [1998] ECR I‑2763, paragraph 16, and Case C‑176/03 Commission  v Council , paragraph 39).
54. It is therefore necessary to determine whether or not the provisions of Framework Decision 2005/667 affect the Community’s competence under Article 80(2) EC, in that they could have been adopted on the basis of that provision, as submitted by the Commission.
55. It should be borne in mind, firstly, that the common transport policy is one of the foundations of the Community, since Article 70 EC, read together with Article 80(1) EC, provides that the objectives of the Treaty are, in matters of transport by rail, road or inland waterway, to be pursued by the Member States within the framework of that policy (see Case 97/78 Schumalla  [1998] ECR 2311, paragraph 4).
56. Next, it should be noted that, under Article 80(2) EC, the Council may decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea transport (see, inter alia, Case C‑18/93 Corsica Ferries  [1994] ECR I‑1783, paragraph 25), and the procedural provisions of Article 71 EC are to apply.
57. As evidenced by the Court’s case-law, far from excluding the application of the EC Treaty to sea transport, Article 80(2) EC merely provides that the specific rules of the Treaty relating to the common transport policy, which are set out in Title V thereof, will not automatically apply to that sphere of activity (see, inter alia, Case C‑178/05 Commission  v Greece  [2007] ECR I‑0000, paragraph 52).
58. Since Article 80(2) EC does not lay down any explicit limitations as to the nature of the specific common rules which the Council may adopt on that basis in accordance with the procedural provisions laid down in Article 71 EC, the Community legislature has broad legislative powers under Article 80(2) EC and is competent – by virtue of that provision and in keeping with the other provisions of the EC Treaty relating to the common transport policy, in particular Article 71(1) EC – to lay down, inter alia, ‘measures to improve transport safety’ and ‘any other appropriate provisions’ in the field of maritime transport (see, to that effect, in respect of road transport, Joined Cases C‑184/02 and C‑223/02 Spain and Finland  v Parliament and Council  [2004] ECR I‑7789, paragraph 28).
60. Moreover, since requirements relating to environmental protection, which is one of the essential objectives of the Community (see, inter alia, Case C‑176/03 Commission  v Council , paragraph 41), must, according to Article 6 EC, ‘be integrated into the definition and implementation of … Community policies and activities’, such protection must be regarded as an objective which also forms part of the common transport policy. The Community legislature may therefore, on the basis of Article 80(2) EC and in the exercise of the powers conferred on it by that provision, decide to promote environmental protection (see, by analogy, Case C‑336/00 Huber  [2002] ECR I‑7699, paragraph 36).
61. Lastly, it must be borne in mind that, according to the Court’s settled case-law, the choice of legal basis for a Community measure must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure (see Case C‑300/89 Commission v Council (Titanium dioxide)  [1991] ECR I‑2867,  paragraph 10; Huber , paragraph 30; and Case C‑176/30 Commission  v Council , paragraph 45).
66. Although it is true that, as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence (see, to that effect, Case 203/80 Casati  [1981] ECR 2595, paragraph 27; Case C‑226/97 Lemmens  [1998] ECR I‑3711, paragraph 19; and Case C‑176/03 Commission  v Council , paragraph 47), the fact remains that when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, the Community legislature may require the Member States to introduce such penalties in order to ensure that the rules which it lays down in that field are fully effective (see, to that effect, Case C‑176/03 Commission  v Council , paragraph 48).
69. Accordingly, since Articles 2, 3 and 5 of Framework Decision 2005/667 are designed to ensure the efficacy of the rules adopted in the field of maritime safety, non-compliance with which may have serious environmental consequences, by requiring Member States to apply criminal penalties to certain forms of conduct, those articles must be regarded as being essentially aimed at improving maritime safety, as well as environmental protection, and could have been validly adopted on the basis of Article 80(2) EC.
70. By contrast, and contrary to the submission of the Commission, the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence.
71. It follows that the Community legislature may not adopt provisions such as Articles 4 and 6 of Framework Decision 2005/667, since those articles relate to the type and level of the applicable criminal penalties. Consequently, those provisions were not adopted in infringement of Article 47 EU.
72. It should also be pointed out that the references made in Articles 4 and 6 of the Framework Decision to Articles 2, 3 and 5 thereof highlight the fact that, in the present case, those provisions are inextricably linked to the provisions concerning the criminal offences to which they relate.
73. As regards Articles 7 to 12 of Framework Decision 2005/667 – which respectively concern jurisdiction, notification of information between Member States, designation of contact points, territorial scope of application of the Framework Decision, the implementation obligation on Member States and the date of entry into force of the Framework Decision – it is sufficient to note, in the present case, that those articles are also inextricably linked to the provisions of the Framework Decision that are referred to in paragraphs 69 and 71 of this judgment, which means that it is not necessary to rule on the question whether they fall within the sphere of competence of the Community legislature.
74. In the light of the foregoing, it must be concluded that Framework Decision 2005/667, in encroaching on the competence which Article 80(2) EC attributes to the Community, infringes Article 47 EU and, being indivisible, must be annulled in its entirety.
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