The evolution of European Union criminal law (1957-2012)

Denmark to adopt a Framework Decision on the protection of the environment. 463 This
reflected the Council’s view that a framework decision, in the context of the third pillar,
was the correct instrument to impose on Member States any obligation to provide for
criminal sanctions. The Commission strongly disagreed with this view and lodged an
action before the CJEU seeking the annulment of the Framework Decision. 464 The
Commission essentially argued that the Framework Decision had been adopted under
the wrong legal basis and that, although in principle the Community did not have a
general competence in criminal matters, it did have competence under Article 175
ECT(A) to prescribe criminal penalties for infringements of Community environmental
protection legislation, if such means were necessary to ensure the effectiveness of the
legislation at stake. The Commission further noted that the harmonisation of national
criminal laws is designed to be an aid to the EC’s environmental policy. 465 Although
recognising that there was no precedent in this area, the Commission submitted that it
relied on the case law regarding the duty of loyal cooperation as well as on the principles
of effectiveness and equivalence to support its opinion. 466 The Council opposed this
view and argued that as the law stood, the Community had no power to require Member
States to impose criminal penalties regarding the conduct covered by the Framework
Decision. 467 It noted that there was no express conferral of power in that regard and,
given the significance of criminal law for the sovereignty of Member States, there were
no grounds for accepting that this power could have been implicitly transferred to the
Community at the time when specific substantive competences were conferred (such as
those exercised under Article 175 ECT(A)). 468 The Council also noted that both Articles
135 and 280(4) of the ECT(A) confirm this interpretation by reserving to the Member
States the application of national criminal law and the administration of justice. 469
Furthermore, according to the Council, the conferral of a competence in criminal matters
to the European Union contradicted the Commission’s argument that the authors of the
ECT(A) intended to confer such competence implicitly to the Community. 470 Finally, the
Council noted that the CJEU, having decided in several cases pertaining to the criminal
law of Member States, had never required them to adopt criminal penalties. 471
463 Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the
environment through criminal law, OJ L 29/55 [2003].
464 Case C-176/03 Commission v. Council ECR I- 07879 [2005], para 18.
465 Ibid., para 19.
466 Ibid., para 20.
467 Ibid., para 26.
468 Ibid., para 27.
469 Ibid., para 28.
470 Ibid., para 29.
471 Ibid., para 31.
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