I’ve left it far, far too long before commenting on the important “ship-source” pollution case in which the European Court of Justice gave its ruling a few weeks ago. Remiss of me. But even if the delay means I’ve lost all credibility with you, you can believe me that the http://www.gooakley.com/ case is a more interesting than it sounds.

You may recall that in the summer of 2005 in another Commission v Council case, C-176/03, the ECJ decided for the first time that in some circumstances the European Community has power to require member states to create criminal offences for breach of Community law. The member states acting as the Council had adopted a Framework Decision under the intergovernmental “third pillar” under the EU Treaty, believing only in that way could European law force member states to lay down criminal sanctions. But the ECJ decided there was Community competence to do the same thing, and since the Council had stepped on the toes of that competence, the Framework Decision was annulled.

This apparently technical procedural issue matters: what’s at stake is whether member states themselves retain tight control over whether European law criminalises behaviour, each having a veto over proposals they themselves put forward (the third pillar approach); or whether the Commission has the right to make proposals, which may then be voted through by a qualified majority of states (the Community approach).

The first case was a clear victory for the Commission: to the surprise of many the ECJ ruled that the Community does have power to require criminal sanction in some cases. It acknowledged that as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence: but where effective, proportionate and dissuasive criminal penalties are essential for combating serious environmental offences, it said the Community may require member states to impose them.

Now the ship-source pollution case develops that reasoning a little more.

On one hand it potentially widens Community competence in this area, or at least opens a chink suggesting its competence to require criminal penalties may be widened in future. That’s because it applies the principle in the earlier case to combating environmental pollution in the transport field, rather than pure environment policy. Because environmental protection is under article 6 of the EC Treaty integrated into all Community policies, in theory this means the Commission can propose environmental rules and, if it can cheap oakley make a decent case that they’re needed, propose criminal penalties for breach of them, under any area of Community policy. The obvious area in which it might want to take advantage of this is under the social chapter dealing with the health and safety of workers: I think we can expect the Commission to bring forward proposals to tackle, say, inhalation risks at work, by requiring criminal penalties. So, one cheer from the Commission for this ruling.

But overall, member states will be more pleased by this judgment, for two reasons. First, the ECJ did not suggest, as it arguably might have done, that the principle of Community competence to require criminal sanctions extends beyond protecting the environment. But second and more importantly, it clearly and straightforwardly ruled that the Community cannot lay down the type and level of criminal penalties – see paragraph 70 of the ruling. This is a clear defeat for the Commission, and means it will only be able to propose that there should be criminal penalties; beyond that, the question of what kind of court deal with offences and what sentences should be available will be for member states. If common rules are thought desirable, member states can only introduce them unanimously under the third pillar.

An important judgment, then, defining the relative power of the Commission and Community on the one hand, and member states on the other when it comes to criminalising our behaviour.