EU criminal law crisis: IPRED2 derailed

[ IPRED2 ]

November 23 2005 - Because of a rule of the European Court of Justice related to criminal law, the current IPRED2 proposal is derailed due to procedural lack of competence. The Commission mentions the pending IPRED2 in its communication about the effects of the Court rule.

Commission Communication (extracts)

One of the aims of this Communication is to suggest a method to correct the situation with regard to texts which were, in the light of the Court’s ruling, not adopted on the proper legal basis. It also aims at setting the direction of the future use of the Commission’s right of initiative.

However, the judgment makes it clear that criminal law as such does not constitute a Community policy, since Community action in criminal matters may be based only on implicit powers associated with a specific legal basis.

Consistency of the Union’s criminal law policy

Although the Community legislature may use the criminal law to achieve its objectives, it may do so only if two conditions – necessity and consistency ‑ are met.

1.Necessity. Any use of measures of criminal law must be justified by the need to make the Community policy in question effective. In principle, responsibility for the proper application of Community law lies with the Member States. In some cases, however, it is necessary to direct the action of the Member States by specifying explicitly (i) the type of behaviour which constitutes a criminal offence and/or (ii) the type of penalties to be applied and/or (iii) other criminal‑law measures appropriate to the area concerned. Checks must be carried out to establish necessity and the observance of the principles of subsidiarity and proportionality at each of these stages.

2.Consistency. The criminal‑law measures adopted at sectoral level on a Community basis must respect the overall consistency of the Union’s system of criminal law, whether adopted on the basis of the first or the third pillar, to ensure that criminal provisions do not become fragmented and ill‑matched. If a sector seems to require specific rules in order to implement the objectives of the EC Treaty, the relationship between these specific rules and the horizontal rules should if necessary be clarified. Care must also be taken to ensure that the Member States or the persons concerned are not required to comply with conflicting obligations. When using its right of initiative, the Commission will take the utmost care to ensure that this consistency is preserved. Parliament and the Council must also take account of this requirement in their own internal organisation.

Consequences of the judgment for acts adopted and proposals pending.

1. As a result of the Court’s judgment the framework decisions in annex are entirely or partly incorrect, since all or some of their provisions were adopted on the wrong legal basis. It is important for a number of reasons to regularise these texts quickly by re‑establishing the correct legal bases. Firstly, even when the period for lodging an appeal has expired the institutions have a duty to restore their legality. This duty lies in the first instance with the Commission, as the guardian of the Treaties and the only body with the power to propose Community acts. However, an equal responsibility rests with the European Parliament and the Council, which are responsible for adopting these acts. The second reason concerns the imperatives of legal security, since the wrong legal basis of the framework decisions could, in some cases, undermine the national implementing legislation.

... 1.There are several ways in which existing law can be rectified in the light of the judgment. One approach would be to review the existing instruments with the sole purpose of bringing them into line with the distribution of powers between the first and the third pillar as laid down in the Court judgment. In such a case, the Commission’s proposals would not contain any provisions which differed in substance from those of the acts adopted, even where the Commission felt that these acts were not satisfactory. This option offers a quick and easy solution. It allows the substance of Community legislation to remain unchanged and ensures legal certainty with regard to provisions that are important to the realisation of an area of freedom, security and justice. This solution would work only if Parliament and the Council agree not to open discussions of substance during this special procedure. Such an approach accordingly requires the prior agreement of the three institutions.

1.If such an agreement could not be reached, the Commission would make use of its power of proposal in order not only to restore the correct legal bases to acts which have been adopted but also to prioritise substantive solutions in line with what it judges the Community interest to be.

This alternative is redundant in the case of pending proposals. The Commission will therefore make the necessary changes to its proposals as and when required. These proposals will then follow the full decision‑making procedure applicable to their legal basis. ...

A list of the acts adopted and pending proposals potentially affected by the Court Decision and which require amendment is attached to this communication. ...

(Legal basis *to be used (TEC)*) Article 95

Proposal for a European Parliament and Council Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights and for a Council framework decision to strengthen the criminal law framework to combat intellectual property offences (COM (2005) 276 final)


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