Ruling curbs Commission ambitions on criminal law

European Commission proposals to set criminal penalties for breaching EU laws have been thrown into doubt by a judgement of the European Court of Justice (ECJ).

Member states are expected to use the ruling on Tuesday (30 October) to challenge a proposal that would criminalise employers for hiring illegal workers.

Further challenges are expected on proposals setting criminal penalties for product piracy and environmental damage.

The ECJ, in a ruling issued this week (23 October), supported the Commission’s challenge to a Council of Ministers agreement on strengthening criminal penalties for pollution from ships. The Commission had argued that the EU law should not have been decided by the member states agreeing among themselves but on a proposal from the Commission, with the participation of the European Parliament. The judges agreed, but they added a caveat that the European Community was "not competent, at the present time, to lay down binding rules on the type and level of criminal penalty which the member states must provide for in their national law".

It is this aspect of the ruling which will strengthen the position of those member states which are opposed to the Commission’s attempts to lay down minimum penalties.

"I am sure there will be some discussion of competence following the judgement," said one member state official.

"You’ll find member states turning up at working groups on intellectual property and employers’ sanctions and, with a judgement like this, saying there is still a dispute over the fields the Commission can set sanctions in," said another official.

Interior ministers from the EU’s six largest member states meeting last week (17-18 October) expressed concern about the proposal to punish employers who hire illegal workers, saying that the root causes of illegal migration needed to be tackled.

BusinessEurope, the European employers’ body, is about to publish a paper arguing that member states already have criminal penalties in place which just need to be better enforced.

The Commission sees the proposal as addressing one of the main pull-factors for illegal migration and says that the law would send a serious signal to employers that hiring undocumented workers is not acceptable.

Observers from the member states believe that legislation proposed in February setting down sanctions for various environmental crimes such as illegally dumping waste or polluting rivers might also be affected by the ruling.

Scott Crosby, a Brussels-based lawyer, defended the Commission’s reasons for proposing sanctions. "The logic of European law is that if you set community rules which apply across the EU and you set sanctions for breaching them, they should be the same everywhere," he said.

"If you get a rap on the fingers in Italy and get thrown in the slammer in Sweden for emptying your [ship’s] hold then you’re going to empty it in Italy."

A spokesman for the Commission said that it was satisfied with the judgement because it confirmed its ability to order criminal sanctions, though it acknowledged it was for member states to fix the type and level of the sanctions.

The judgement does not give the member states total freedom to introduce minimal sanctions since they must be "effective, proportionate and dissuasive". The judgement adds: "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."

The Commission said that the newly agreed reform treaty would "clarify" the situation since it envisaged moving criminal justice to Community competence.

European Commission proposals to set criminal penalties for breaching EU laws have been thrown into doubt by a judgement of the European Court of Justice (ECJ).