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[14/09/2005] Ireland loses; EU wins power to jail Irish Citizens


(Sent to you for your information by Anthony Coughlan, The National
Platform EU Research and Information Centre,Dublin  ...  Please forward to
your friends and acquaintances who may be interested in or concerned about

Wednesday 14 September 2005

The EU has been given the power to compel Irish courts to fine or imprison
people for breaking EU laws, even if the Irish Government and Dail Eireann
are opposed.

An unprecedented ruling yesterday by the EU Court of Justice in Luxembourg
gives Brussels the power to introduce harmonised criminal law across the EU,
creating for the first time a body of European criminal law that all Member
States must adopt.

The judgment by the EU supreme court was opposed by 11 EU Governments
including Ireland. In principle the judgement gives the EU the power to
impose criminal sanctions for all breaches of EU law. It greatly extends
the power of the non-elected Brussels Commission, which would have the
exclusive right to propose such criminal sanctions, to be adopted by
majority vote of the Council of Ministers.

Traditionally the EU Court of Justice (ECJ) works hand in glove with the
Commission, as both are supranational institutions that benefit from
increasing supranational powers. In the words of one of its judges,the ECJ
is a "court with a mission" -  that mission being to extend the
supranational powers of the EU and its institutions to the utmost. The
Commission's press release of yesterday welcoming the Court ruling may be
read at  http://www.statewatch.org/news/2005/sep/ecj-environment-dec.pdf

Yesterday's  ruling was given in a test  case about environmental law, an
issue which  may make it acceptable to some people who fail to appreciate
its constitutional and political implications. The judgement is a legal
landmark that sets an important precedent. It gives the Commission the
right to decide when breaches of EU laws are so serious that they should be
treated as criminal.

The Member States who lost the court-case were seeking to guard their
sovereignty over criminal law. The Commission took them to court after they
blocked it from introducing harmonised criminal law for pollution. The
Court of Justice ruled in the Commission's favour, concluding: "The
European Community has the power to require the member states to lay down
criminal penalties for the purposes of protecting the environment."

Yesterday's judgement upheld the EU Commission's challenge to the Council
of Ministers' "Framework Decision on the Protection of the Environment
through Criminal Law". The Council of Ministers  contended in the case
that,as EU law currently stands, Member States cannot be forced to impose
criminal penalties in respect of conduct covered by the Framework Decision.
Ireland and the 10 other Member States that suppoorted the Council of
Ministers position contended that not only is there no express conferral of
power on the EU  to impose criminal sanctions  under the European treaties,
but, "given the considerable significance of criminal law for the
sovereignty of the Member States, there are no grounds for accepting that
that power can have been implicitly transferred to the Community at a time
when specific subnstantive pwoers,such as those pertaining to the
environment, were conferred on it."

The Commission disputed this view and yesterday's judgement came down
decisively on the Commission's side.

The judgement effectively means that when Member States transferred powers
to the EU, the Court of Justice has now decided that they implicitly gave
the EU power to impose EU criminal sanctions for breaches of EU law.

EU Member States  have always insisted that the power to set criminal law
goes to the heart of national sovereignty and must be decided by national
Governments and Parliaments. The judgement of the Luxembourg judges means,
however, that national governments can no longer exempt EU law from being
upheld by criminal sanctions.

When Irish people agreed in successive referendums to transfer powers to
Brussels, the politicians who supported this never told them  that they
could be found to be in breach of EU criminal law for disobedience!

The Commission says that it would use its new powers only in extreme
circumstances, but its officials are already talking about introducing EU
crimes for overfishing, deliberate polluting, money laundering, price
fixing and the vast legal territory of the EU internal market.

José Manuel Barroso, the President of the Commission, welcomed yesterday's
ruling: "This is a watershed decision. It paves the way for more democratic
and more efficient lawmaking at EU level."

In reality it opens the way to criminal laws over a vast policy territory
being rewritten at EU level,and a harmonised EU criminal code, which was
prefigured in the proposed EU Constitution that was rejected by French and
Dutch voters this summer.

The Court said that although as a general rule criminal law does not fall
within EU powers, that "does not prevent the Community legislature ... from
taking measures that relate to the criminal law of member states which it
considers necessary".

The ruling means that the Commission can propose an EU crime that, if
passed by the European Parliament and a qualified majority of Member
States, must be adopted by all Member States even though a particular
Government and Parliament may be against it.  This means that Ireland can
be forced to introduce a crime into its law if enough other EU States
support it. It also gives the Commission the power to compel members to
enforce EU criminal law if governments drag their heels or if their courts
refuse to sentence people.

The ruling was welcomed by most MEPs, who will now have the powers to pass
criminal law and not just civil law.

The EU Council of Ministers which lost this case yesterday, was supported
in the proceedings by Ireland, Denmark, Finland, Sweden, the Netherlands,
Germany,  France,the UK, Spain, Portugal and Greece

====================AND ===========
Some excerpts from today's UK press reports on this judgement

THE GUARDIAN, Wednesday 14 September 2005

Brussels wins right to force EU countries to jail polluters

Nicholas Watt, European editor

Brussels was given greater powers over the EU's 25 members yesterday, when
the European court of justice declared that the union's rules can be
enforced through criminal sanctions . . .

The court delivered its ruling after a disagreement between the commission
and the council of ministers over the punishment of polluters. Both sides
agreed that polluters should face criminal penalties, but they disagreed on
how these should be enforced: European ministers argued that under the
"Third Pillar" of the Maastricht treaty, the matter should be left in the
hands of governments who would have the power of veto.

The commission argued that it should be enforced through the "First Pillar",
also known as the "Community Pillar". This waters down the power of member
states by involving all three of the EU centres of power - the commission,
the council of ministers, and the European parliament. Countries also lose
their national veto. This view was endorsed by the Luxembourg-based court.

The ruling means the commission would have the right to tell EU countries to
impose criminal penalties on polluters. This would be carried out in
national courts, although the commission would like to extend its powers by
recommending the level of punishment.

Michel Petite, head of the European commission's legal service, said: "I
suppose that for a directive to be complied with, we might want to to say it
has to be a criminal penalty, we may want to say it has at least to be at
this level. That could be viewed as a necessary condition for the directive
to be complied with properly. But that was not contemplated in the ruling."

British government sources indicated that the result of the court's ruling
will be deadlock, with no criminal charges being brought against polluters
at a European-wide level. EU countries originally voted in favour of the
original plan to allow governments to decide the matter by 11 votes out of
15 in 2003.

"There was such a strong vote because of the principle that this should be
decided by member states. That point of principle has not changed, so there
will be deadlock," one source said.

But pro-Europeans welcomed the European court of justice's ruling. Chris
Davies, the Liberal Democrat leader in the European Parliament, said:
"Europe needs an umpire to ensure fair play between member states and to
dismiss the cheats. The commission is the only body that comes close to
fitting that role and this court ruling gives it more teeth with which to

============================AND ====================

THE INDEPENDENT, London,  Wednesday 14 September 2005

Europe may impose criminal penalties for breaching EU law

By Stephen Castle in Brussels

. . .  the head of the Commission's legal service, Michel Petite, hinted that
in future the Commission might not only push member states to apply criminal
sanctions, but also to set the scale of sanctions. The Commission said the
ruling applied to areas where it enjoys competence, including internal
market measures, environmental protection, data protection, defence of
intellectual property and monetary matters. . .


THE DAILY TELEGRAPH,  Wednesday 14 September 2005

Criminal sanctions to enforce EU law

By Andrew Sparrow, Political Correspondent

European commissioners yesterday hailed a landmark legal judgment that could
give them the power to use criminal sanctions to enforce EU law.

José Manuel Barroso, the commission president, claimed that the European
Court of Justice had made a "watershed decision" that would lead to "more
democratic and more efficient lawmaking at EU level".

Eurosceptics said the decision showed that national governments were losing
power to determine their own laws. . .

The ECJ decision is hugely sensitive because until now the EU has only been
able to use the criminal law to enforce its decisions in certain categories
where all member states agree legislation by unanimity. In theory, qualified
majority voting - which allows EU law to be made against the wishes of a
minority of member states - could now be used to take decisions that would
have to be enforced throughout the EU by criminal sanctions.

The ECJ issued its ruling following a power struggle between the commission,
the EU's unelected bureaucracy, and member states.

Two years ago, member states created a new law on environmental pollution,
involving minimum EU-wide penalties for serious offenders, using the
unanimity decision-making procedures set out in the so-called "third pillar"
of the EU's treaty provisions.

But the commission took the member states to court because they believed
criminal sanctions should be available to enforce laws.

Yesterday, the commission claimed that the court decision set an "important
precedent" because it would allow "the commission to continue to enhance its
efforts to ensure compliance with the provisions of European Community law
also by means of criminal law".

The internal market, environmental protection, data protection, protection
of intellectual property and monetary matters were all named by the
commission as areas where EU law could be backed up by criminal sanctions. . .


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