A recent decision of the European Court shows the court flexing its judicial muscle in demarcating legislative powers between the European institutions

It is fair to say that case law from Europe tends to suffer from an image problem, and the European Court of Justice (ECJ) has long suffered from the bureaucratic branding frequently attributed to its fellow European Institutions. 

Established in 1952, the ECJ ensures uniformity of interpretation and application of Community law across the EU. Together with infringement proceedings, actions for annulment of Community decisions and appeals from the Court of First Instance (a second tier established in 1989), one of the main roles of the ECJ is dealing with preliminary references from member states’ courts seeking clarification on a point of law raised during litigation. Although Scotland and England have equal opportunities to exploit this avenue of referral, there are still relatively few references from north of the border – a situation frequently highlighted by former ECJ judge, and Scot, Sir David Edward.

In terms of procedure, it is not easy to establish many parallels between the ECJ and the Scottish courts. Heavily influenced by the French legal system in its formative years, the ECJ retains French as its working language and relies on written opinions provided by its eight Advocates General, as a means of assisting the court in formulating judgments. Only one judgment is issued from the bench in each case, despite judges sitting in various collegiate compositions. The lack of dissenting opinions means that judges have to concur with their learned friends before the ruling is issued, often resulting in delays as differences in opinion are reconciled, and terse, succinct judgments, sometimes devoid of substantive legal debate.

While subsequent treaty amendments have extended the court’s jurisdiction to new areas of EU competence, it has undoubtedly been instrumental, through its judgments and rulings, in furthering the process of European integration. One recent ECJ ruling continues to ruffle feathers in Brussels, as well as outwith traditional Eurocentric audiences, and is testament to the importance of European case law in the domestic legal arena.

Battle of the pillars

The case of Commission v Council (C-176/03), decided on 13 September 2005, involved an action for annulment of Council Framework Decision 2003/80 on the protection of the environment through criminal law. The Commission argued that the Decision had been adopted by the member states on the incorrect legal basis, namely the “third pillar” intergovernmental provisions on police and judicial co-operation in criminal matters, which require the unanimous approval of member states. The court agreed, stating that the legislation should have been adopted under the environmental protection provisions of the EC Treaty – “first pillar” provisions which normally require a qualified majority vote of member states and co-decision with the European Parliament.

Essentially the case represented an institutional power struggle, which has enabled the Commission to propose the use of criminal sanctions as part of measures adopted under “first pillar” Community law. Although undoubtedly a bold step forward in the fight against environmental crime, it is the speculation regarding the potential use of these controversial powers in other areas of Community competence that has dominated the headlines.

The power to penalise

The Commission has hailed this clarification of competencies as a “step forward for democracy”, as the Parliament, via the procedure of co-decision, now has joint legislative powers with the Council to adopt penal sanctions whenever recourse to criminal law measures appears necessary in order to ensure the effectiveness of Community law. The Commission, in line with normal procedure under the ”first pillar”, is now entitled to take member states to court if they fail to implement EU legislation properly. It is this extension of the Commission’s sphere of competence that has prompted discomfort amongst those fearful of Europe’s encroachment into national sovereignty. Despite losing the national veto under the “third pillar”, however, member states still retain the right to block Commission proposals via qualified majority voting under the “first pillar”.

Amid a flurry of activity in Brussels in relation to this case, the precise implications for domestic law remain as yet undetermined. A recent policy document adopted by the Commission calls for the conversion of 10 existing framework decisions into directives, in a bid to secure the legal certainty of the texts, in light of the court’s ruling. It remains to be seen whether such proposals will be allowed an easy passage.

What is certain, however, is the judgment’s role as another building block in the incremental progression of the ECJ’s jurisprudence and an unquestionable flexing of its interpretative muscle. It is a progression about which lawyers across the EU, including lawyers in Scotland, are gradually becoming aware.

The Law Societies’ office in Brussels provides a free monthly publication summarising the main cases that are being heard by the EU courts and which are of importance and interest to practising solicitors in the UK and other legal practitioners. To subscribe to this publication please contact brussels@lawsociety.org.uk .

Alison Presly is a trainee solicitor at Anderson Strathern, on secondment to the Law Societies’ Office in Brussels

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