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[11/12/2005] The power of the EU over our lives



The power of the EU over our lives has been dramatically extended by a
recent judgement of the European Court of Justice (ECJ) in Luxembourg that
has got remarkably little  attention in Ireland.

In September the Court ruled that the EU had the right to create
pan-European criminal offences for breaches of EU law, which Member States
would have to implement even if they are opposed to such criminal

This ECJ judgement opens the door to the creation of a body of
supranational EU criminal law for the first time. This had been proposed in
the EU Constitution which the French and Dutch rejected last summer, but
the September judgement brings it into being anyway. It signals a major
shift of power from national capitals to the EU.

For the first time in legal history this judgement permits the EU rather
than its Member States to lay down sanctions such as prison sentences and
fines for citizens violating EU laws. As a consequence Member States lose
their exclusive power to decide what constitutes a crime, and when their
citizens may be fined, imprisoned or given criminal records. Member States
are thereby deprived of one of the classical prerogatives  of all
independent sovereign States.

"This is a watershed decision," said Commission President Manuel Barroso in
greeting the ECJ judgement. The Commission lost no time in jumping in with
a document on 23 November that listed seven areas which it said should
become EU crimes immediately: private sector corruption, credit card and
cheque fraud, counterfeiting euro notes and coins, money laundering, people
trafficking, computer crime and marine pollution.

The Commission suggested that possible future EU crimes could be be
corruption in awarding public contracts, racial discrimination and
incitement,intellectual property theft and trafficking in human organs and
tissues. Legal commentators  have suggested that financial services,
consumer protection law, health and safety rules for factories and offices,
the CAP,fisheries policy, transport and trademarks could become further
fields of application for EU crimes and penalties in time and require
significant  harmonization of national  criminal codes in these areas.

At present it is up to Member States to decide whether to use criminal
sanctions to enforce EU laws or not, and what those sanctions should be.
Thus Ireland decides that if fishermen violate  EU fisheries laws they may
be fined, have nets confiscated and so on. The ECJ judgement permits the EU
to decide what will be EU crimes in future, and how Irish and other
citizens should be punished for committing them.

It is surely remarkable that 50 years after the Treaty of Rome the Court of
Justice should claim such a power for the EU.  Although the ECJ judgement
related to environmental matters, it means that the EU can in principle
attach supranational criminal penalties henceforth to breaches of EU law
going back to the original Treaty of  Rome, so long as the Commission
proposes and the Council of Ministers agrees by majority vote that cross-EU
criminal penalties are necessary and should apply.

The ECJ judgement was given in a dispute between the Commission, supported
by the European Parliament, and the Council of Ministers as regards their
respective powers.  The Commission contended that it could propose criminal
sanctions for breaches of EU law and have them agreed by majority Council
vote. The majority of the "old Europe" 15 on the Council of Ministers,
including the Irish Government, contended that imposing criminal sanctions
for breaches of EU law required unanimity,so that each Member State
retained a veto. Eoin Fitzsimons SC represented Ireland in the case.

The Court came down on the Commission's and Parliament's side, as it
generally does as regards anything that expands EU powers. One of the ECJ's
own judges, Pastorino, once characterised the ECJ as a "court with a
mission" -  that mission being to  increase the powers of the EU to the
utmost by means of its interpretation of the European treaties.

The Commission, Court and Parliament share this common aim, for all
increases in EU power increase the powers of these supranational
institutions and the power of the judges, bureaucrats and MEPs that compose
them.  The EU Member States, their governments, parliaments and citizens
lose power correspondingly.

Henceforth a Member State that opposes a breach of a particular EU law
being made into a crime, or opposes the level of EU penalty attached, will
still have to introduce it if a sufficient number of other EU States vote
for it.   In principle the new legal  position would allow the EU to compel
Ireland to jail or fine its citizens for doing things that the Irish
Government and Oireachtas did not consider a crime - improbable though that
may seem at present.

Commission officials are reported as saying that in future they will draft
tests to decide if offences against EU laws are civil, administrative  or

In this way 25 non-elected EU judges, together with the 25 non-elected EU
Commissioners, have  increased their power over all of us in what amounts
to a judicial coup d'etat against democratic national governments and the
citizens that elect them.


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