Notice for the OJ
Action brought on 15 April 2003
by the Commission of the European Communities
against the Council of the European Union
(Case C-176/03)
An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 15 April 2003 by the Commission of the European Communities, represented by J.-F. Pasquier and W. Bogensberger, 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 January 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 therefore 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 guaranteed 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 of 5.2.2003, p. 55.2 - OJ L 261 of 20.10.1993, p. 1.