Member states split over Commission powers

Disputes over the European Commission's powers to influence criminal law are holding up proposals to establish EU-wide criminal sanctions on employers of illegal workers and on people who infringe intellectual property rights (IPR).

At issue is how to interpret a September 2005 judgment from the European Court of Justice (ECJ). The court ruled that the Commission has the power to propose criminal sanctions to enforce environmental policy, using legal bases and procedures outlined in the Nice treaty, which was agreed in December 2000 and signed in 2001. The Commission applied a broad interpretation, arguing that the ECJ's reasoning could be applied to other policy areas.

But neither its proposal on illegal workers nor on IPR is being given an easy ride in the Council of Ministers. An apparently irreconcilable split between the member states has emerged on the illegal workers proposal over whether the Commission has the power to propose these measures. In a paper distributed on 19 February to member states' ambassadors, Slovenia, the current holder of the EU presidency, reported that the experts "could not come to a consensus with regard to the question of competence", despite meeting several times since late 2007.

According to documents from the expert working party, a majority of member states believe that the legal base proposed by the Commission is flawed. They argue that the relevant article would allow it to propose, at most, criminal sanctions to prosecute illegal immigrants, or those who facilitate their path to Europe. They do not believe it could be used to criminalise employers who only create a pull factor for such immigration. It is also clear, one national expert said, that switching the proposal over to a legal base in employment and social policy would not solve the problem.

Sergio Carrera, a research fellow for the Centre of European Policy Studies, argues that: "It is clear that the Commission has power to propose criminal sanctions in this area." Indeed, the Council's own legal service backs the Commission's approach and is of the opinion that the Commission chose the "correct and sole" legal base for the adoption of the directive. But a majority of member states do not agree.

The proposal by the Commission on IPR, which it published in April 2006, is facing similar problems. Ministers have not discussed the proposal for more than a year because of arguments over the Commission's competence and the appropriate legal base.

In October 2007, the ECJ clarified its 2005 ruling, saying that, although the Commission can propose criminal sanctions, its power does not extend to proposing the type and level of the penalties which should be applied.

The Slovenian presidency's report of last week notes that the Commission's plans did not seek to set the level of penalties for employers of illegal workers. But it says that the proposals still need to be redrafted to cut out binding requirements on types of penalties. To comply with the ECJ ruling, the IPR proposal would require a more radical revision before it could be adopted, since it includes detailed requirements about the length of prison sentences and size of fines that should be applied to those who infringe IPR.

The Commission would like to push the proposals through using the Nice treaty because it would not need to get unanimous approval from the member states, only a weighted majority in favour. The Commission would have the power, once the proposals were adopted, to launch legal proceedings against any country which did not apply them properly.

But the Lisbon treaty might tilt the dispute more in the Commission's favour. The new treaty would enable the Commission to propose "approximation" of member states' criminal laws in all areas where the EU has harmonisation powers and can, to a limited extent, undo the effect of the 2007 court judgement, by allowing for the establishment of "minimum rules" on defining sanctions. But such proposals would be valid only when criminal sanctions were "essential" to ensure the proper implementation of EU policy. According to an official, the Commission has yet to determine fully what these new provisions will mean.

On the illegal immigration dossier, a number of countries doubt the necessity of EU-wide rules. On the IPR proposal, the battle-lines are still fuzzy, since there has been only a small amount of discussion in the Council of the content of the plans. But the Commission is still struggling to extend minimum EU-wide sanctions beyond environment policy.

Disputes over the European Commission's powers to influence criminal law are holding up proposals to establish EU-wide criminal sanctions on employers of illegal workers and on people who infringe intellectual property rights (IPR).

ESO: Background information http://www.europeansources.info/record/press-release-court-of-justice-strengthens-democracy-and-efficiency-in-european-community-lawmaking/

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