Much-needed European initiatives to protect the environment take nothing away from the power of member states, writes Michael Renouf

Recent sensationalist media reports incorrectly stated that the European Court of Justice (ECJ) judgment of 13 September in Commission v Council on criminal sanctions for breaches of EC environmental law allows the European Commission to force member states to introduce criminal sanctions for environmental polluters.


The 1957 EEC Treaty did not mention environment, but as the need for action at European level became clear, member states brought environmental protection within community competence. Despite many legislative measures, scientific reports regularly confirm worsening degradation of the European environment and member states agreed, through a Council of Ministers framework decision adopted under EU Treaty provisions on co-operation in criminal matters, that they must establish national criminal sanctions for breaches of certain EC environmental rules. The European Commission sought to annul that measure. The ECJ had to decide whether the member states were right to adopt the measure under the EU Treaty.


When the European Community has competence to legislate under the EC Treaty, the European Parliament and the Council of Ministers (namely, the member states) can amend and must agree the final text of a proposal originating from the commission (which cannot impose its will on the outcome of its proposals). In contrast, for competences under the EU Treaty, member state governments set the rules among themselves. Another difference is that the commission can challenge member states that fail to apply rules adopted under community competence, whereas under the EU Treaty there is no such power.


Imprisonment and fines have always been possible under national law for breach of EC rules. Over four decades, in successive judgments on criminal laws, the ECJ has held that where EC laws do not designate penalty provisions for breaches, the member states may apply such penalty measures as they consider appropriate. Infringements must be penalised under procedural and substantive conditions analogous to those applicable to infringements of national law of similar nature and importance.


Moreover, the penalty must be effective, proportionate and dissuasive. EC law imposes limits on national laws that criminalise action lawful under EC law. Even criminal procedural rules can be reviewed in the light of EC law. Nonetheless, except for a provision in the proposed Constitutional Treaty, there was previously neither express legislation nor ECJ case law confirming community competence to set criminal sanctions.


In a natural progression in its jurisprudence, the ECJ annulled the framework decision, which, as its main purpose was protection of the environment, should have been adopted on the basis of the relevant environment provisions of the EC Treaty. The EU Treaty states that nothing in it is to affect the EC Treaty. Therefore, member states should not have taken action under the EU Treaty provisions on co-operation in criminal matters. So this was not a case about whether to criminalise environmental infringements, but rather a power struggle to determine who has competence to legislate and under what procedure.


The commission can only propose rules covering areas falling within EC substantive law competence. Member states and the European Parliament will be able to influence, and even block, commission proposals. If adopted, the rules will still need to be applied at national level - 'Brussels' cannot imprison Britons.


Michael Renouf is the Law Society Council member for EU matters. He writes this article in his personal capacity