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

Regardless of the Court having placed the measures at stake in the narrow context of
environmental crime, the European Commission, perhaps not surprisingly, issued a
communication on its own interpretation of the Court’s decision, noting that, in its
opinion, the reasoning of the Court could be extended to other policy areas. 484 In
particular, the Commission noted that,
“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 included at European level.” 485
Following this Communication, the Commission sought the annulment of yet another
Council Framework Decision: the Council Framework Decision to strengthen the
criminal law framework for the enforcement of the law against ship-source pollution. 486
The Court annulled this Framework Decision as well and took the opportunity to clarify
the scope of EC competence in criminal matters. 487 To develop its reasoning, the Court
relied once again on Article 47TEU(A), which layd down that none of the provisions of
the ECT(A) were to be affected by provisions of the TEU(A). It reiterated the formula
that, in principle, criminal law and rules of criminal procedure do not fall within the
EC’s competence, but found that the case was again exceptional:
“(…) 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”. 488
The Court went on to note that the provisions laid down in the Framework Decision
related to conduct likely to cause particular environmental damage as a result of the
484 Communication from the Commission to the European Parliament and the Council on the
implications of the Court’s judgement of 13 September 2005 (Case C-176/03 Commission v
Council), COM(2005)0583final.
485 Point 11, ibid..
486 Council Framework Decision 2005/667/JHA of 12 July 2005 to strengten the criminal-law
framework for the enforcement of the law against ship-source pollution, OJ L 255/164 [2005].
487 Case C-440/05 Commission v Council ECR I-9097 [2007].
488 Para 66, ibid..
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