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The pillars of the European Union still exist?

European Court of Justice (Grand Chamber), Judgment of 6 May 2014, Case C-43/12, Commission v European Parliament and Council

Published online by Cambridge University Press:  02 October 2015

Monika Szwarc
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Abstract

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Keywords

EUlegislative actslegal basisECJ
Type
Case Notes
Information
European Constitutional Law Review , Volume 11 , Issue 2 , September 2015 , pp. 357 - 372
Copyright
Copyright © The Author 2015 

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Footnotes

*

Professor at the Institute of Legal Studies, Polish Academy of Sciences, Warsaw.

References

1 OJ L 288, 5.11.2011, pp. 1-15.

2 Before the entry into force of the Treaty of Lisbon we would apply the term ‘Community policy’ meaning one of the policies pursued under the Treaty establishing the European Community. In the present state of EU law it is proposed to use the term ‘internal market policies’ to underline the EC provenence of EU competences.

3 In particular the Commission shares the right of initiative with a quarter of the member states (Art. 76 TFEU), and the legislative procedures under Arts. 82(3), 83(3), 86(1) and 87(3) TFEU may be suspended in order to discuss a proposal by the European Council; finally, enhanced cooperation may be established without the need of an authorising decision of the Council according to Art. 329(1) TFEU.

4 Arts. 1 and 2 of the Protocol (No. 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and TFEU – see also Recital 22 in the Preamble.

5 Arts. 1 and 2 of the Protocol (No. 22) on the position of Denmark, annexed to the TEU and TFEU – see also Recital 2 in the Preamble.

6 COM (2008)151 final.

7 Explanatory Memorandum, p. 3.

8 Opinion of AG Bot, para. 15.

9 Opinion of AG Bot, para. 17.

10 Judgment, paras. 32-37.

11 Judgment, paras. 38-41.

12 Judgment, para. 42.

13 ECJ 9 September 2004, Case C-184/02 and C-223/02, Spain and Finland v European Parliament and Council EU:C:20004:497, para. 30; cited in para. 43 of the commented ruling.

14 Judgment, para. 44.

15 Judgment, para. 47.

16 Judgment, paras. 48-51.

17 ECJ 5 June 2012, Case C-489/10, Bonda EU:C:2012:319.

18 ECJ 7 May 2013, Case C-617/10, Åklagaren v Hans Åkerberg Fransson EU:C:2013:280.

19 Series A no. 22, 8 June 1976, Engel and Others v the Netherlands, paras. 80-82.

20 ECJ 5 June 2012, Case C-489/10, Bonda, para. 37.

21 ECJ 7 May 2013, Case C-617/10, Åklagaren v Hans Åkerberg Fransson EU:C:2013:280, para. 35.

22 ECJ 14 November 2013, Case C-60/12, Baláž EU:C:2013:733.

23 OJ L 76, 22.3.2005, pp. 16-30.

24 Baláž, para. 25-26.

25 Baláž, paras. 34-36 and 42.

26 COM (2008)151, p. 3.

27 ‘The road safety related traffic offences covered by this Directive are not subject to homogenous treatment in the member states. Some member states qualify such offences under national law as “administrative” offences while other qualify them as “criminal” offences. This Directive should apply regardless of how those offences are qualified under national law.’

28 As AG Bot put it: ‘formal interpretation raises a number of problems. First, it runs counter to the requirement that European Law should be applied uniformly, by introducing a heterogenous element to the substantive an temporal scope of police cooperation procedures such as that provided for by the directive. In fact, the application of such a procedure would then depend on the classification given at national level to each of the offences to which Article 2 of the Directive refers’, para. 61 of the Opinion.

29 ECJ 13 September 2005, Case C-176/03, Commission of the European Communities v Council of the European Union, concerning the Framework Decision 2003/80/JHA on the protection of the environment through criminal law (OJ L 29, 5.2.2003, pp. 55-58).

30 ECJ 23 October 2007, Case C-440/05, Commission of the European Communities v Council of the European Union EU:C:2007:625, concerning the Framework Decision 2005/667/JHA to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution (OJ L 255, 30.9.2005, pp. 164-167).

31 It was replaced by a ‘two way street’ type of rule in the current Art. 40 TEU, which furthermore only deals with Common Foreign and Security Policy.

32 Opinion of AG Bot, para. 15.

33 Judgment, para. 29.

34 Opinion of AG Bot, paras. 32-33.

35 Judgment, para. 49.

36 Judgment, paras. 47-48.

37 See also the arguments of AG Bot in para. 35 of his Opinion.

38 OJ L 80, 23.03.3002, pp. 35-39.

39 Opinion of AG Bot, paras. 47-48.

40 ECJ 10 February 2009, Case C-301/06, Ireland v European Parliament and Council EU:C:2009:68, para. 83.

41 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, OJ L 105, 13.4.2006, pp. 54-63.

42 ECJ 26 October 2010, Case C-482/08, United Kingdom v Council EU:C:2010:631, paras. 50-51.

43 Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of member states and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences, OJ L 218, 13.8.2008, pp. 129-136.

44 Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, OJ L 210, 6.8.2008, pp. 1-11.

45 Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, OJ L 210, 6.8.2008, pp. 12-72.

46 Opinion of AG Bot, para. 44, indicating also Recitals 2, 9 and 10 in the Preamble.

47 CIS Convention, OJ C316, 27.11.1995, p. 33.

48 OJ L 323, 10.12.2009, pp. 20-30.

49 C-176/03 and C-440/05. See n. 31 and n. 32 respectively.

50 COM (2014)476 final.