European Court of Justice crosses the Rubicon

Neither criminal law nor the rules of criminal procedure fall within the European Community’s competence. If the Community wants criminal law, it needs the member states to make it. The member states have a veto, this way they can protect their national criminal law systems.

On 13 September 2005, in case C-176/03, the European Court of Justice (ECJ) turned this around. It gave the Community the right to make criminal law. In my opinion, it is a coup d'état.

Sovereignty

In case C-176/03 the member states submitted: "27 Not only is there no express conferral of power in that regard, but, given the considerable significance of criminal law for the sovereignty of the Member States, there are no grounds for accepting that this power can have been implicitly transferred to the Community (...)"

The ECJ concludes: "47 (...) As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence (...)
48 However, the 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."

Not a word about sovereignty, the Community just grabbed it.

And all this just after the peoples of France and the Netherlands voted the Constitution down. Some people don't take no for an answer.

All Community law?

While not general rules, the Treaty contains strong counter-examples. In art 280 EC Treaty the Community gets the right to take measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Community. These are very serious crimes, especially from a Community perspective. Yet, no criminal measures can be taken by the Community.

The ECJ: "52 (...) It is not possible to infer from those provisions that, for the purposes of the implementation of environmental policy, any harmonisation of criminal law, even as limited as that resulting from the framework decision, must be ruled out even where it is necessary in order to ensure the effectiveness of Community law."

In a case where criminal measures could be expected they are ruled out. So in other cases they can be taken? Only when they are necessary? As if measures against financial fraud wouldn't be necessary. The ECJ writes: "even where it is necessary in order to ensure the effectiveness of Community law." Even? There is an awful lot of Community law. Is that where the ECJ will take us? Not financial fraud but all Community law? Terrible. And a perversion of the Treaty.

The Court still has the possibility to limit the new competence to environmental policy... We can only hope it will do that.

Pandora's Box

Giving a Community with a democratic deficit the right to make criminal law is a road to disaster. And if it gives itself that right, you know you're done for. The member states Constitutions, which protect the peoples, are undermined this way. Roll over, Montesquieu.

Over-exaggerated? No, just take a look at the first criminal law directive proposal by the European Commission. It criminalises all infringements of "intellectual property rights", even normal business conflicts. It has an open scope and miserably fails to define the crime with precision. All goods belonging to a person can be confiscated. The right holders can assist the police, help to draw conclusions. And in the European Parliament members want to go even further...

One day, 13 September 2005 may be seen as the start of the European Dictature.

I like an other future better. C-176/03 has to be revised.