Auteur: mr. Michiel Duchateau
What to think of the approach chosen by the European Court of Justice in case C-176/03?
September last year, the Court of Justice of the European Communities has ruled for the first time that the European Community in some cases has the power to harmonise criminal law1. This seems to be a landmark decision which could have a great impact on the powers of the European Community and on European law in general. However, the decision itself was not very extensively motivated. Instead of elaborating on several important issues, the Court seems to have mainly followed its own reasoning, leaving open at least one very important question.
In my view, the case is ultimately about the application of the doctrine of implied powers within the legal framework of the European Union. However, the Court applied this doctrine very implicitly. Therefore, the first aim of this paper is to analyse what the Court has exactly ruled. In order to get a clear view on this, an overview will be given on the relevant law regarding the powers of the European Union. Furthermore, the findings of the Court will be described.
The second aim of this paper is to analyse if and how the approach to implied powers, which the Court has used, fits into the legal framework of the European Union. In order to give an answer to that question, first the doctrine of implied powers will be described in general. Then an attempt will be made to show which elements of the several approaches to implied powers do and don’t fit in the legal framework of the European Union. Finally, it will be attempted to determine if the approach, chosen by the Court of Justice, fits in this legal framework.
Choosing the right ‘pillar’
In February 2000 the European Council was working on adopting a ‘third pillar’ framework decision on combating environmental crime, based on art. 34(2)(b) EU in conjunction with art. 29 and 31(e) EU (‘the framework decision’)2. This framework decision aimed to harmonise certain aspects of environmental criminal law. Before it was adopted, however, the European Commission proposed a ‘first pillar’ directive on the protection of the environment through criminal law in March 2001. This directive was based on art. 175 EC. The aim and content of both the framework decision and the directive were very similar because the Commission and the Council agreed on the measures to be taken but disagreed on the legal instrument to be used. The Commission announced that “if the Council were to adopt a Framework Decision, it would commence proceedings before the Court of Justice.”3 The Council contested that the Community has the authority to harmonise criminal law through a directive, and adopted the framework decision4. As a result of this, the Commission commenced proceedings and asked the Court to annul the framework decision.
The case is ultimately about the question whether the proposed measures could have been adopted through a directive. Art. 47 and art. 29(1) EU provide that nothing in the Treaty on the European Union is to affect the EC Treaty. This means that measures which can be adopted through a (‘first pillar’) directive may not be adopted through a (‘third pillar’) framework decision. The Commission claimed that the Council had acted contrary to this rule by adopting the contested framework decision. The Council did not contest the rule as such, but rather submitted that the proposed measures could not have been adopted through the directive based on art. 175 EC.
In cases concerning a possible clash between ‘first pillar’ and ‘third pillar’ powers, the choice of the legal basis for a measure is particularly important, because of the major procedural differences which exist between the two pillars. This also holds true for the case at hand. If the Commission was right and art. 175 EC would have been the correct legal basis, then the co-decision procedure of article 251 EC would have applied under which the Commission has the sole power of initiative, the European Parliament has the right to approve or disapprove, and the Council decides by qualified majority voting. On the other hand, if the Council was right and art. 34 EU would have been the correct legal basis, then the Council would have had to decide unanimously, and the European Parliament would have had to be (merely) consulted.
As to the law
According to settled case law, the choice of the legal basis for a Community measure must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure5. The Court has ruled in previous cases that “if [the] examination of a Community act shows that it has a twofold purpose or twofold component and if one of these is identifiable as main or predominant, whereas the other is merely incidental, the act must be founded on a sole legal basis, that is, the one required by the main or predominant purpose or component.”6 If an act simultaneously pursues a number of objectives which are indissociably linked, without one being secondary and indirect in relation to the other, such an act may be founded on the various corresponding legal bases.
Art. 34 in Title VI of the Treaty on European Union governs police and judicial cooperation in criminal matters. It is the appropriate legal basis for European legislation regarding matters of criminal law. It is not the appropriate legal basis for European legislation concerning environmental law. Art. 174 – 176 EC on the other hand govern the Community’s powers with regard to environmental law. As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence7.
The member states are not entirely free to choose their own method of upholding Community law. The principle of assimilation, which the Court has formulated inCommission v. Greece8, requires the member states to punish violations of Community law in a manner analogous to comparable violations of national law. In addition to this, penalties for violating Community law must be “effective, dissuasive and proportionate to the infringement”, and “the national authorities must proceed with respect to infringements of Community law with the same diligence as that which they bring to bear in implementing corresponding national laws.”9
Up until now the Court has never obliged the member states to adopt criminal penalties.10 The principle of assimilation can sometimes entail that a member state must respond to violations of Community law by means of criminal law, but this is only the case when the member state itself has chosen to punish violations of corresponding national law by means of criminal law. Ultimately, the choice to prescribe criminal penalties has up until now remained with the member states.
Findings of the Court
The Court started out stating that articles 47 and 29 EU provide that nothing in the Treaty on European Union is to affect the EC Treaty, and that it is its task “to ensure that acts which, according to the Council, fall within the scope of Title VI of the Treaty on European Union do not encroach upon the powers conferred by the EC Treaty on the Community.”11 Therefore, the relevant question to be answered was whether the Council had correctly maintained that measures adopted in the framework decision could not have been adopted in a directive based on art. 175 EC.
The Court, basing itself on the title and the first three recitals of the framework decision, found the aim of the framework decision to be the protection of the environment.12 In reference to art. 3 and 6 EC and settled case law, the Court reiterated that the protection of the environment is one of the essential objectives of the Community.13Art. 2 EC states that the Community has as one of its tasks to promote “a high level of protection and improvement of the quality of the environment.”
As regards the content, the Court established the framework to contain a list of (particularly serious) environmental offences, which the member states were to punish by criminal penalties. According to the Court, this obligation certainly did entail a partial harmonization of the criminal laws of the member states.14 Therefore, the content of the framework decision related to environmental law, but also contained criminal law.15
The Court recognized that “[a]s a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence.”16 Nevertheless, it ruled that the Community can be competent to legislate in matters of inter alia criminal law: “the last-mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.”17
To this it added “although Articles 1 to 7 of the framework decision determine that certain conduct (…) is to be criminal, they leave to the Member States the choice of the criminal penalties to apply, although, (…) the penalties must be effective, proportionate and dissuasive.”18 Without saying it explicitly, the Court seems to mean by this that the framework decision cannot be held to be very effective.
As to the necessity of the measures, the Court pointed out that the Council itself had also taken up the view that criminal penalties are essential for combating serious offences against the environment.19
The Court thus concluded: “It follows from the foregoing that, on account of both their aim and their content, Articles 1 to 7 of the framework decision have as their main purpose the protection of the environment and they could have been properly adopted on the basis of Article 175 EC.”20 The framework decision, being indivisible, was therefore completely annulled.
An implied power?
This case is a good example of the inherent difficulties of the pillar-structure of the European Union. This is not the first time, and it will certainly not be the last, the Court is asked to rule on the question whether a measure is to be adopted under the first or under the third pillar. In this case, the Court essentially could have followed two lines of reasoning.
It could have stuck to the general rule under which the Community has no power to legislate on matters relating to criminal law. If it would have stuck to this rule, the Court would have had to judge whether the framework decision contained any measures not relating to criminal law, which could have been adopted under art. 175 EC. It would have had to distinguish strictly between environmental and criminal law, thus necessitating both a directive and a framework decision for any measure which aims to punish infringements of Community measures using criminal law. In this case, the Court seems to have considered such an approach to be ineffective.21
For this reason, it seems, the Court chose another approach. It judged the measures adopted by the framework decision to relate to criminal law and environmental law at the same time. This posed a problem. The Court could not adhere strictly to its previous case-law regarding the choice of a legal basis, since neither EC-treaty nor the EU-treaty provides legal basis for both measures relating to environmental law and measures relating to criminal law. Furthermore, the important procedural differences between art. 34 EU and art. 175 EC render it impossible for a measure to be based on both. Therefore, it had to come up with a rule which allows measures relating to criminal law to be adopted under the EC-treaty, even though no provision to this end seems to exist.
The answer to the posed problem is also the essential rule established by the case: the Community legislature must be deemed competent to legislate on matters of criminal law “when the application of (…) criminal penalties (…) is an essential measure for combating serious environmental offences, [and] it considers [them to be] necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.”22 The Community legislature, in other words, is competent to legislate on matters of criminal law when it considers such legislation necessary to attain an essential goal of the Community, even though as a general rule it isn’t. Thus, the Court “extend[ed] the boundaries of Community Law, for the sake of the effectiveness of its policies.”23
This not a completely new approach to the powers of an international organization. Without calling it as such, the Court has in fact applied a common definition of the doctrine of implied powers.24 In order to better understand the implications of the ruling of the Court, it is useful to look into this doctrine a bit deeper. First an overview will be given of several approaches to the doctrine of implied powers. Secondly, an attempt will be made to show which elements of the several approaches to implied powers do and don’t fit in the legal framework of the European Union. Lastly, it will be attempted to determine if the approach, chosen by the Court of Justice, fits in this legal framework.
Attributed and implied powers
It is widely agreed that international organizations cannot function properly if they must adhere to the principle of attributed powers very strictly. They are “dynamic and living creatures, in constant development, whose founding fathers can never completely envisage the future.”25 The doctrine of implied powers tries to explain how it is possible for an organization to have a power which it has not been expressly granted. It considers such a power to be attributed by ‘necessary intendment’. There are roughly two ways in which the doctrine is defined, the main difference between which is whether the power that is to be implied must relate to an express power or to a task of an organization.
The International Court of Justice (ICJ) defined the doctrine of implied powers in theReparation for Injuries-case as follows: “Under international law, the Organization must be deemed to have those powers which though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.”26 When applying this definition to the EC-treaty, the view of Alan Dashwood on what implied powers are can be enlightening. According to him “[t]he rule is that the [EC-]Treaty must be interpreted as conferring any powers that are really indispensable for carrying out the tasks it prescribes.”27
It is important to note that these definitions relate the powers, which an international organisation must be deemed to have, to its tasks and not to powers which have been expressly conferred upon them. For this reason judge Hackworth dissented in theReparation for Injuries-case. He thought the definition given by the majority to be unduly wide. In a famous passage he stated that “[p]owers not expressed cannot freely be implied. Implied powers flow from a grant of express powers, and are limited to those that are “necessary” to the exercise of powers expressly granted.”28 He thought “the mere ‘necessity’ of some power was insufficient, if only because necessity as such is a blank cheque.”29
Lauwaars’ definition of implied powers is only slightly different. According to him, implied powers are powers without which the expressly attributed powers would be rendered useless, or without which they could not be reasonably and effectively applied.30 This definition is a bit more flexible than the one used by Hackworth. It allows powers to be deemed to be implied even when that is not really necessary, but merely reasonable or effective. Lauwaars and Hackworth agree though, that the power to be implied must be related to an express power.
Making implied powers work for the European Union
It is obvious there are some important differences between the several approaches to implied powers. Which of these, if any, would be the right one to use in the context of the European Union? Art. 5 EC constitutes the principle of attributed powers to be the leading principle on the powers of the European Community. In principle this means that all the powers the Community has are specified in the treaty. This means that the powers of the Community are by definition limited. Therefore, it is not possible to use an approach to implied powers which states that the Community has all the powers which are necessary to attain its goals, irrespective of the ones specifically listed.31
This is not the same as saying that there is no room for implied powers in the Community though. It is still possible to use the doctrine of implied powers to justify the extensive interpretation of expressly granted powers in such a manner, that they are considered to include implied powers. This amounts to saying the treaty does confer a specific power, as the principle of attributed powers requires, but does so implicitly. In the case of last September, this would mean that the power to legislate on matters regarding environmental law must be held to also include the power to legislate environmental criminal law. The question remains however whether that is a correct application of the doctrine of implied powers.
So when is it possible to hold an express power to include an implied power in the context of the European Community? Above, several possibilities have been mentioned. Using the majority opinion of the International Court of Justice, it is possible to claim an implied power whenever that is necessary to the performance of the duties of the Community. Using Hackworth’s opinion, this criterion would not be enough. He claimed that implied powers can only be deemed to exist when they are necessary to the (useful) exercise of powers expressly. Lastly, Lauwaars’ opinion allows a bit more. According to him, a power can be held to be implied whenever that is necessary to the reasonable or effective application of a power expressly granted.
However, before choosing one of these criterions it is useful to look into the origin and the underlying idea of the implied powers doctrine. In my view one element which is crucial to an appropriate application of the doctrine of implied powers still isn’t mentioned.32
The origin of the doctrine
The doctrine of implied powers, it is generally held, originates in the United States.33 The U.S. constitution explicitly gives Congress the power “[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”34 In other words, in the United States the implied powers are expressly granted.
However, in order to make this work for international organizations, an element must be added. After all, there is no rule of international law, which states that international organizations have all those powers which are necessary to the performance of their duties. Instead, the implied powers doctrine only serves “to justify using a particular interpretative device.”35 The element to be added, therefore, is the intent of the drafters of the charter of an organization. By doing this, it is possible to hold international organizations to not only have those powers explicitly conferred upon them by their charter, but also to have those powers which can be deemed to be granted by implication or necessary intendment.
Selecting an approach to implied powers
It should now be possible to select the approach to implied powers which best fits in the context of the European Union. It is clear that art. 5 EC requires all powers of the Community to be mentioned in the treaty. Therefore, a power to be implied must always be read into a power which is expressly granted.
It is my view however, that this can only be done when it is plausible that the drafters could have intended such a power to exist. Although art. 5 EC states that it is the treaty which confers the powers on the Community, it must be remembered that it are in fact the member states who have limited their sovereignty by constituting the European Community.36 Since the treaty by itself cannot generate powers and it does not contain a ‘necessary and proper clause’ as the U.S. constitution does, the powers conferred on the Community must be conferred on it by the member states. In my view, there is no other way of explaining where the powers of the Community derive from.
Applying this to the doctrine of implied powers leads to the following. A power not expressly granted, can only be deemed to be implied in a power which is expressly granted, when that is necessary the reasonable or effective application that power while it is plausible that the drafters could have intended such a power to exist.
In the case of last September, the Court has ruled that the Community legislature is competent to legislate on matters of criminal law when it considers such legislation necessary to attain an essential goal of the Community, even though as a general rule it isn’t. A power, which was up until now considered to be third pillar power, was made into a first pillar power by means of interpretation by the Court of Justice. In my view, this is not a correct application of the doctrine of implied powers since the interpretation of the Court is obviously contrary to the wording of the treaties. If the third pillar had not existed, the judgment of the Court would perhaps have been justified. But since it is very unlikely the drafters of the EC-treaty could have meant the Community to have a power which they specifically conferred on the third pillar of the European Union, it is unexplainable how the Community got that power. Necessity as such, in the words of Hackworth, is a blanc cheque and the principle of attributed powers does not allow for a blanc cheque.
Michiel Duchateau is a PhD student at the Rijksuniversiteit Groningen.
1. Case C-176/03.
2. S. White, ‘Harmonisation of criminal law under the first pillar’,European Law Review, 2006, p. 82.
3. White 2006, p 83.
4. Although no unanimous position was reached, most members of the Council contested this authority of the Community. C-176/06, Opinion of the Advocate-General, note 14.
5. See  of the judgment. The Court referred to case C-300/89 Commission v. Council ‘Titanium dioxide’, paragraph 10 and Case C 336/00 ‘Huber’, paragraph 30.
6. C-491/01, paragraph 94.
7. This is how the Court of Justice phrased it in  of the judgment. In support of this statement, it referred to case 203/80 ‘Casati’, paragraph 27, and case C 226/97 ‘Lemmens’, paragraph 19.
8. Case 68/88.
10. This is the way the Council put it (see  of the judgment). The Commission “recognise[d] that there is no precedent in this area.” (See  of the judgment).
11. See  and  of the judgment.
12. See  of the judgment.
13. See  of the judgment. The Court referred to case 240/83 ADBHU, paragraph 13, case 302/86 Commission v Denmark, paragraph 8 and case C 213/96 Outokumpu, paragraph 32.
14. See  of the judgment.
15. The Court did not literally draw this conclusion. Rather, it did not specifically conclude the content of the framework decision to be anything at all.
16. See  of the judgment. In support of this statement, the Court referred to case 203/80 Casati, paragraph 27, and case C 226/97 Lemmens, paragraph 19.
17. See  of the judgment.
18. See  of the judgment.
19. See  of the judgment.
20. See  of the judgment.
21. See ‘Findings of the Court’ of this paper, and  of the judgment.
22. See  of the judgment.
23. White, p. 86.
24. See for instance Schermers & Blokker, International Institutional Law, p. 177.
25. J. Klabbers, An introduction to International Institutional Law, Cambridge University Press, 2002, p. 66..
26. Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion  ICJ Reports 174 majority opinion, p,182.
27. A. Dashwood, ‘The Limits of European Community Powers’, European Law Review, 1996 21, p. 124.
28. Ibid note 29, Hackworth dissenting, p. 198.
29. Klabbers 2002, p. 74.
30. According to Lauwaars he adopted this definition from case 8/55 Fédéchar. Unfortunately, I have not been able to find this quotation in the case myself. R.H. Lauwaars in: Kapteyn – VerLoren van Themaat, Het recht van de Europese Unie en van de Europese Gemeenschappen, Deventer: Kluwer 2003, p. 188.
31. Thus, the majority opinion of the International Court of Justice cannot be applied within the Community
32. Maybe this element (see below) is not properly dealt with in definitions, but it should in any case be mentioned
33. C. Denys, Impliciete Bevoegdheden in de Europese Economische Gemeenschap; Een onderzoek naar de betekenis van ‘implied powers’, Antwerpen: Maklu 1990, p. 116.
34. Article I section 8 US Constitution. This provision is generally called the ‘necessary and proper clause.’
35. Klabbers 2002, p, 67, note 31.
36. Also see the Van Gend en Loos-case: “[T]he Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals” (italics added. MD). Case 26/62.